SAMSON KOMEN AND KIPKOSIOM CHEPYEGON VS COUNTY ASSEMBLY CLERK AND CHIEF OFFICER FINANCE AND 1 Others

1. By a notice of motion dated 20^th March 2024, Samson Komen and Kipkosiom Chepyegon, (hereinafter jointly referred to as the applicants) moved the court seeking leave to change their advocates from the firm of Mburu Okora and Company Advocates to Chepkilot Kiptoo and Company Advocates. The applicants also seek an order directing the respondents to deposit the amount due to them directly to their account to wit Cooperative Bank Account No.01100559227001.
2. The application is premised on the grounds on its face and supported by the affidavit of Samson Komen, the 1^st applicant, in which the grounds on the face of the application are reiterated.
3. As can be discerned from the grounds on the face of the application and the affidavit in support thereof, the application is premised on the grounds that the applicants’ firm of Advocates, Mburu Okara and Company Advocates received Kshs. 1,000,000/- from the first respondent whom they had won a case against; that upon receiving the said amount, which was part of the decretal amount of Kshs. 2, 500,000/- payable to them by the respondents, their advocate only paid them Kshs. 150,000/-; that their advocates refused to inform them about the whereabouts of the balance of the decretal amount they received on their behalf and that the relationship between them and their advocates is so strained that it is incapable of being salvaged. Further, that it is only fair that they be allowed to change their advocates with the firm of Chepkilot Kiptoo & Company Advocates.
4. It is the applicant’s case that no party would suffer any prejudice if the orders sought are granted.

1. In reply and opposition to the application, the applicants’ advocates, the firm of Mburu Okora & Company Advocates, filed the replying affidavit of Charles Kinara Okara, sworn 30^th May 2024.
2. Through the affidavit of Charles Kinara Okara aforementioned, the firm of Mburu Okara & Company acknowledges that it represented the applicants in the case hereto, Kabarnet PMC ELC Case No. 22 of 2020, where the applicants were awarded Kshs. 2,500,000/- payable by Baringo County Government (Kshs. 1,500,000/-) and Kapkemoi Dispensary (Kshs.1,000,000/-) ; the firm denies having received Kshs. 1,000,000/- from Kapkemoi Dispensary but states that it received Kshs. 900,000/-.
3. It is the firm’s case that the balance of the amount payable to the applicants by Kapkemoi Dispensary, being Kshs.100,000/- was paid to the applicants by the dispensary directly and that it paid the applicants a total of Kshs.800,000/- through their son/brother, Lasoi Komen of ID No.6104927; that it has reason to believe that Lasoi Komen forwarded  the money to the plaintiffs (Lason Komen is well known to the deponent as he is the one who brought the case to his firm on behalf of the applicants).
4. The deponent of the affidavit further deposes that the County Government of Baringo (1^st respondent) failed to honour its part of the bargain causing them to use the balance of the decretal sum they received, being Kshs. 100,000/-, to file judicial review proceeding against it on behalf of the applicants.

1. Explaining that he was never paid his fees for the case in the lower court and the judicial review case he filed on behalf of the applicants, the deponent terms the allegations contained in the applicants’ supporting affidavit baseless.
2. According to Mr. Okara, thier firm has no problem with the firm of Chepkilot Kiptoo coming on record for the applicants, provided the applicant’s pays their legal fees amounting to Kshs. 870,000/- before the orders are granted.
3. In a rejoinder, the applicant filed a supplementary affidavit sworn on 4^th July 2024 in which they acknowledge that Lasoi Komen is their relative but state that they did not authorize him to receive the decretal amount on their behalf and that there is no proof of any money having being forwarded to them by him.
4. Concerning the condition given by their advocates of payment of their legal fees before the application can be allowed, the applicants have deposed that their outgoing advocates can still file their bill of costs against them, if they wish to do so.

1. The applicants have reiterated their contention that they only received Kshs. 150,000/- from their outgoing advocates from the decretal amount of Kshs. 1,000,000/- paid to their advocates.
2. The applicants term as impracticable the demand by their outgoing advocates for payment of Kshs. 870,000/- as legal fees when the balance of the decretal sum received by them of Kshs. 850,000/- is still in their custody. The applicants also wonder what criteria their outgoing advocates used to arrive at the fees of Kshs. 870,000/- given that they have not taxed their bill of costs.

1. In response to the issues raised in the applicants’ advocates response, the County Attorney Baringo County Government, filed the replying affidavit he swore on 3^rd July 2024. In a nutshell, the County Attorney confirms that the applicants’ counsel was paid Kshs. 900,000/- by Kapkomoi Dispensary.
2. The County Secretary does not appear to be opposed to the application for change of advocate and the prayer for payment of the balance of the decretal amount to the applicants’ account.
3. I have carefully read and considered the circumstances leading to filing of the instant application, lack of trust between the applicants and their advocate.
4. From the affidavit evidence adduced by both the applicants and their counsel, I gather that there is misunderstanding between the applicants and their counsel touching on payment of part of the decretal sum the advocates received on behalf of the applicants.
5. Whereas the advocate has explained that he paid the plaintiffs through their son/brother, whom he has reason to believe had instructions to receive the decretal amount, he has not produced any power of attorney or any other document authorizing the said brother/son of the applicants, to receive the decretal amount on behalf of the applicants. He has also not produced any document or instruction from the applicants’ authorizing them to apply part of the decretal sum to file a judicial review case on behalf of the applicants. In the circumstances, I find and hold that the applicants’ averment that their relationship with their advocates is strained and incapable of being salvaged to have been substantiated.
6. As pointed out above, the applicants’ counsel is not opposed to the applicants being granted leave to replace his firm with the firm of Chepkilot & Co. Advocates. Nevertheless, he has asked the court to order the applicants to pay them Kshs. 870,000/- being their unpaid legal fees before the order is granted.
7. That demand for legal fees is not pegged on any taxed bill of costs in favour of the applicants’ advocates. That being the case, it cannot form a basis of denying the applicants leave to change their advocate, in the circumstances of this case.
8. Having determined that the relationship between the applicants is strained and incapable of being salvaged, it is fair and just that the applicants be allowed to change their advocate with another firm of advocate of their choice.
9. It is the view of this court that no prejudice would be suffered by the applicants’ outgoing advocate if the applicants are allowed to change their advocate as they can still tax their bill of costs against the applicants, if need be.
10. The upshot of the foregoing is that the applicants have made up a case for being granted prayer 1 of their notice of motion dated 20^th March 2024, which I hereby grant them as prayed.
11. With regard to prayer 2, I note that the applicants have not provided any documentary evidence capable of proving that the account referred to in that prayer is theirs. Given the circumstances surrounding the instant application, I decline to grant that prayer as sought and direct that any amount payable to the applicants be effected by way of banker’s cheque drawn in favour of the applicants.
12. Orders accordingly.

Dated, signed and delivered virtually this 18^th day of September, 2024.

In the presence of:

• Mr. Kiptoo for the applicants.
• Mr. Okara for the respondent
• Mr. Chemuswa holding brief for Mr. Mwaita for the respondents