1. Before the court for determination is the Garnishee’s Notice of Motion application dated 17/7/2024. The application was filed interalia under Article 33 of the Constitution; Section 63(c) & (e) of the Civil Procedure Act; Order 22 Rule 40 & 49, Order 23 and Order 40 rules 1,2 & 4 and order 9 rules 8 & 9 of the Civil Procedure Rules 2010.
2. In the application, the Garnishee seeks in the main, an order that the court to set aside the Attachment in Execution dated 24th June 2024 and a declaration that the Decree dated 27th August 2022 in favour of the Respondent herein has been fully satisfied.
3. Additionally, the application seeks an order of this court, declaring that Peter Ruo Maina has no locus standi to represent Orion East Africa Limited, the Decree-Holder in these proceedings.
4. The grounds of the application as set out in its body and the supporting affidavit sworn on 17th July 2024 by Florence Njuguna, the Garnishee’s Legal Manager. Ms. Njuguna depones that the decree-holder instituted a suit against the judgment debtor in 2002 and consequently on 16/9/2002, a decree was entered in favour of the decree-holder against the judgment debtor for Kshs.2,485,058.60 together with interest at the rate of 3 percent per month until payment in full. Costs of Kshs. 121,126.10 was equally awarded to the Respondent herein and a Certificate of Costs duly issued.
5. The garnishee stated that following the entry of the judgment, the decree holder and the judgment debtor entered into a consent on or about 16/5/2019 whereby the amount of Kshs.17,395,410.20 was paid in full and final settlement of this suit and that the judgment debtor proceeded to pay the said sum on 29/5/2019 to the decree holder’s then advocates on record, Ngatia & Associates.
6. It was averred that despite the satisfaction of the decree in this suit, the decree-holder on or about 24/6/2024 irregularly and unlawfully obtained an attachment in execution order against the garnishee herein.
7. Further, the garnishee asserted that Peter Ruo Maina has no locus to represent the decree holder in these proceedings.
8. In opposition to the instant application, Mr. Ruo Maina who described himself as a “senior citizen – Green Earth Trust, interlocutor/intercessor" for Orion East Africa Ltd, the Respondent, filed on behalf of the company what he referred to as “a preliminary objection and Counterclaim” dated 26th July 2024 on behalf of the company on the basis that the garnishee’s application does not raise any justiciable legal issues and that the Applicant has no locus standi to bring any action before this court.
9. Additionally, Mr. Maina stated that the application is lacking in evidence, and does not show how the garnishee fully satisfied the decree issued on 27/8/2002 or any other decree issued by this court.
10. Accordingly, this Court was urged to strike out the instant application by the Garnishee Bank.
Analysis and determination:
11. In support of its application, the decree-holder filed submissions dated 11/10/2024 whilst submissions dated 25/10/2024 were filed on behalf of the Decree-Holder by the aforesaid Ruo Maina.
12. From the pleadings and submissions by the parties herein, I note that the only issue for determination I have considered the same, together with the pleadings filed in this matter is whether the decree dated 27/8/2002 has been fully satisfied as alleged by the Garnishee, the Applicant herein.
13. The Garnishee submitted that through a consent dated 16th May 2019 between the parties herein, the decretal sum in this suit was fully settled.
14. I have carefully perused the annexures produced by the garnishee, particularly from pages 74-77 of the supporting affidavit sworn by Florence Njuguna, the Garnishee’s Legal manager. The annexures comprise of consents entered into by the parties herein recorded in the Court of Appeal which settled the four applications before the court as the judgment debtor agreed to pay to the decree-holder the sum of Kshs.17,395,410.20 in full and final settlement of this suit.
15. Evidence annexed to the application is clear that the judgment debtor’s advocate wrote to the decree holder’s then advocates, M/s Ngatia & Associates Advocates on 30/5/2019 informing them that the decretal sum was already deposited into their account on 29/5/2019 and the RTGS Confirmation Advice was attached thereto. The letter is produced on page 78 of the legal officer’s supporting affidavit.
16. I note that Mr. Maina did not adduce evidence to counter the assertion that the decretal sum in this suit had long been settled. Instead, it was only submitted on behalf of the decree-holder that the Applicant did not adduce any evidence that the said decretal sum had been remitted to the bank accounts of the decree-holder by its then Advocates, Ngatia & Associates. With due respect, this argument cannot hold. It is trite law that a consent entered into by a party’s advocate is binding on all parties to the proceedings.
17. The principles governing consents was discussed in the case of Kenya Commercial Bank Ltd v Specialised Engineering Co Ltd [1982] KLR 485, where Harris, J held, inter alia, that:-
“1.A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side." [emphasis added].
18. Having analysed the evidence availed, particularly those contained at pages 73-80 of the annextures to the affidavit in support of the application, it is clear to me that the decretal sum had long been settled on 29/5/2019 pursuant to the consent agreements entered between the parties. Once the said amount was remitted as evidenced by the RTGS payment advice, the litigation in this suit came to an end.
19. The second issue for determination is whether Mr. Ruo Maina had the locus standi to represent the decree-holder in these proceedings.
20. Order 9 rule 9 of the Civil Procedure Rules 2010 provides as follows:
“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court-
a. Upon an application with notice to all the parties; or
b. Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
21. In Monica Moraa v Kenindia Assurance Co. Ltd [2010] eKLR the court held as follows:
“……there is no doubt in my mind that the issue of representation is critical, especially in a case such as this one where the applicant’s advocates intend to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view, the firm of M/S Kibichiy & Co. Advocate should have sought this court’s leave to come on record as acting for the applicant. The firm of M/S Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice, and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….”
22. In this case, Mr. Maina o filed various pleadings before the court, after judgment had been entered, purportedly on behalf of the decree-holder which is a company with a separate legal personality.
23. The decree-holder was represented by another law firm before judgment was entered in this suit. It was therefore necessary for Mr. Maina who appeared in person as the purported representative of the decree-holder to adhere to the provisions of Order 9 rule 9 of the Civil Procedure Rules 2010. It was incumbent upon him to seek an order of the court to effect the change of representation in this matter.
24. The question of locus standi was described by the court in the case of Christopher Mutiembu Machimbo & 3 others v County Surveyor, TransNzoia & 4 others [2022] eKLR where it held that:
“Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that. Locus standi is so important that in its absence, the party has no basis to claim anything before the Court.”
25. Further, it is equally settled that a suit can only be instituted or continued for and on behalf of a company where there is a company’s resolution authorising the same. In Assia Pharmaceuticals vs. Nairobi Veterinary Centre Ltd. Nairobi (Milimani) HCCC No. 391 of 2000 the court held as follows: -
“It is settled law that where a suit is to be instituted for and on behalf of a company there should be a company resolution to that effect……As regards litigation by an incorporated company, the directors are as a rule, the persons who have the authority to act for the company; but in the absence of any contract to the contrary in the articles of association, the majority of the members of the company are entitled to decide even to the extent of overruling the directors, whether an action in the name of the company should be commenced or allowed to proceed. The secretary of the company cannot institute proceedings in the name of the company in the absence of express authority to do so; but proceedings started without proper authority may subsequently be ratified.”
26. Having considered the above, it is clear that Mr. Maiana lacked the requisite locus standi to represent the decree holder in these proceedings. Consequently, all pleadings filed by him are incompetent and must suffer the fate of being struck out.
27. Having found that the decree dated 27th August 2002 which is the subject of this application was fully satisfied vide the consent dated 29/5/2019 and that Mr. Ruo Maina lacks the requisite locus standi to continue these proceedings for and on behalf of the Decree-Holder, I find merit in the application dated 17/7/2024.
28. Accordingly, I grant prayers 4, 5,6, and 9 of the Application dated 17/07/2024
29. On costs, the order that commends itself to me is that each party should bear their own costs.
30. It is so Ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 20TH DAY OF MARCH 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant