REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT MISCELLANEOUS APPLICATION NO. 65 OF 2019

MOHAMED AND SAMNAKAY...............................................ADVOCATE/ APPLICANT

VERSUS

DILSHAD MOHAMED..............................................................CLIENT/ RESPONDENT

RULING

1. On 30^th May 2018, the firm of; Mohammed Samnakay (herein “the applicant”) filed an advocate/client bill of costs (herein “the bill”) dated; 25^th May 2018; seeking for legal fees in the sum of; Ksh. 633,709,00, arising from the Chief Magistrate Miscellaneous Criminal Application No. 616 of 2016: DCI vs Diamond Trust Bank Limited and Dilshad S. Mohamed, whereby the applicant allegedly acted for the respondent.

2. On 13^th September 2018, the notice of the bill dated; 19^th July 2018, was served upon the firm of; Ms Agnes W. Njoroge & Company Advocates who were acting for the respondent, and on 15^th March 2019, the respondent, filed an affidavit in opposition to the bill.

3.  On 21^st March 2018, the respondents filed submissions; and on 22^nd July 2020, the Honourable Mr. Justice L. Kimaru delivered a ruling in which he struck out the bill with no orders as to costs.

4. Being dissatisfied with the ruling, the applicant filed a notice of motion application, pursuant to; Order 45 R. 1 and Order 51 R. 1 of the Civil Procedure Rules, 2010 and section 1A, 3A and 80 of the Civil Procedure Act seeking for orders that:

a. That, the Honourable Court be pleased to review the ruling and orders made by this Honourable Court on the 22^nd July 2020, striking out applicant’s bill of costs dated 25^th May 2018;

b. That the Honourable Court do review and set aside and/or vacate its ruling and orders dated; 22^nd July 2020 and all consequential orders therein;

c. That the applicant’s bill of costs dated; 25^th May 2018 be reinstated and heard afresh.

d. That the costs of this application be provided for.

5. The application is based on the grounds and supported by the affidavit of; Zul Mohamed, an advocate of the High Court of Kenya, and a partner in the applicant’s law firm.  He avers that, there is an obvious mistake and/or error apparent on the face of the record and that, some of the documents filed in support of the bill escaped the court’s attention, when striking out the bill.

6. The application was served upon the respondent on 2^nd February 2021, Thereafter, the court directed the parties to file submissions. The applicant filed its submission dated; 8^th February 2021. However, when the matter came up for directions on; 8^th March 2021, Ms. Njoroge, advocate for the respondent informed the court that, the respondent had passed on and sought for time to consider what action to take. 

7. On 29^th March 2021, the court directed the respondent avail the death certificate in proof of the respondent’s death and stood over the matter to; 2^nd June 2021, for further directions. When the matter was mentioned, respondent’s counsel informed the court that, she had filed an affidavit in proof of death of the respondent. 

8. However, although the applicant acknowledged service of the affidavit, it was argued that, save for obituary there was no death certificate annexed to the affidavit. However, the respondent’s counsel stated that, the respondent’s relatives reside in the United States of America (USA), and that the information presented is all she managed to gather. 

9. That, to her knowledge, the respondent was elderly and had passed on. Further, the applicant was aware of the respondent’s demise and should concede to the same. That, in the given circumstances, the proceedings had abated.

10. Pursuant to the aforesaid, the respondent was allowed two months to provide the death certificate and the matter stood over to 2^nd June 2021.  On that date, the respondent was not in court and the applicant sought for a date for ruling on the application, dated; 12^th March 2020.  The ruling was scheduled for 10^th August 2021.

11. However, before the ruling was delivered, the respondent filed a notice of motion application dated; 9^th August 2021, brought under the provisions of; sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 10(2) and Order 51(1) of the Civil Procedure Rules, seeking for orders that:

a. Spent

b. That, the Honourable Court be pleased to arrest the ruling due for delivery on 10^th August 2021 and any other pending ruling, pending the hearing and determination of this application;

c. That, the Honourable Court be pleased to arrest the ruling due for delivery on 10^th August 2021 and any other pending ruling;

d. That, the Honourable Court be pleased to grant the representative of the deceased respondent to file response to any pending applications.

12. The application is supported by the grounds thereto and an affidavit of the even date sworn by; Zainul Mohamed, the daughter and one of the executors of the respondent. She deposes that, the respondent passed away on 28^th March 2020 and that, she only learnt of pending legal fees when she was informed of the same by; Mr. Zul Mohamed, an advocate with applicant.

13. She averred, based on records, the deceased respondent did not    issue any instructions to the applicant to act on her behalf in the subject matter. That, it was only in June 2021, that Mr. Mohamed informed her that, the current matter was coming up for mention on; 7^th June 2021, and she instructed advocates to come on record.

14. In the meantime, the court had directed that, the ruling scheduled for; 20^th September 2021, on the application dated; 12^th October, 2020, be brought forward to 13^th September 2021, when the court would be on vacation duty.  However, as a result of the application dated; 9^th August 2021, being fixed for mention on; 20^th September 2021, the ruling was rescheduled to the same date; to enable the respondent be heard first.

15. On 13^th September 2021, the court gave directions, on the filing of responses and/or submissions on the respondent’s application. When the parties appeared on; 13^th September 2021, the respondent was represented by the learned counsel; Ms Kariuki, practicing in the firm of; Ricar Advocates LLP; whereupon the applicant raised an objection to her appearance on the ground that, the counsel had no locus standi to appear for the respondent.

16. However, the learned counsel, Ms Kariuki indicated that, she had filled a notice of Change of Advocate, but the applicant though acknowledged that, he had been served with the notice, argued that, there was no legal representation of the estate of the deceased, who could have the legal authority to appoint a legal counsel, to represent the estate, hence, the original counsel was still on record.

17. On 20^th September 2021, the applicant informed the court that, it had filed a preliminary objection.  The court gave directions on the same as to the filing of responses and submissions. The parties filed several responses and/or submissions as borne by the record.  The ruling was set for 1^st November 2021, but regrettably due to pressure of work, was stood over to; 4^th November 2021 and delivered.

18. Pursuant to the said ruling, the respondent was allowed to file a response to the applicant’s application and the preliminary objection. The respondent filed a consent of appointment of an advocate dated; 25^th November 2021, and served upon the applicant but the applicant filed a notice of protest thereto.  The ruling in the matter was set for; 23^rd February 2022, but adjourned due to pressure of work as indicated on record.

19. Pursuant to the aforesaid, the parties agreed with the court that, one ruling be delivered on application dated; 12^th October, 2020, the Respondent application dated; 9^th August 2021, and a preliminary objection dated; 13^th September 2021, and/or notice of protest.

20. I have considered all the material before the court and I find that several issues have arisen for consideration, namely whether: -

a. There is evidence that, Dilshad Mohamed, the respondent is deceased; and/or Zainul Mohamed, is properly on record as legal representative of the deceased respondent’s estate;

b. The law firm of Ricar & Company Advocates are properly on record;

c. The application dated; 9^th August 2021, is valid and/or competent;

d. Any document filed by the respondent without the leave of court should be expunged from record;

e. The respondent should be heard before the ruling on the notice of motion application dated; 12^th October 2019, is delivered;  

f. The suit has abated.

21. However, before I delve into the aforesaid issues, I note that, on 4^th November, 2021, the court delivered a ruling in this matter which in my considered opinion, resolved quite a number of the aforesaid issues.  The ruling extensively dealt with the issues raised in the filed in preliminary objection to, the respondent’s application dated; 9^th August, 2021, and by extension the subject application.

22. For a comprehensive understanding thereof; I will recap the key finding the court made in relation to that application and the preliminary objection.  As regards the preliminary objection, I find that, on the issues as to whether; Zainul Mohammed, is a non-party to the suit, the court found that, based on the documents she produced being; death certificate number; 0905833, the will of the deceased respondent, and the limited Letters of grant of Administration ad litem dated; 23^rd September, 2021, she is properly on record as a legal representative of the estate of the deceased.

23. On the issue whether, the firm of; Ricar and Company Limited, Advocates, have locus standi, to act on behalf of the deceased’s estate, having been appointed by a non-party, the court held that, based on the finding that, Zainul Mohammed is legal representative of the deceased respondent, the firm; Ricar and Company Limited, Advocates, has locus standi.

24. The next issue relates to, the abatement of the respondent’s notice of motion, filed one year after the demise of the respondent. The applicant argued that, in the given circumstances any right accruing to the respondent’s estate have abated in terms of Order 24 Rule 4 of the Civil Procedure Rules, 2010.

25. The aforesaid provisions provide as follows: -

 (1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

 (3) Where within one year no application is made under sub-rule (1), the suit shall abate as against the deceased defendant;

26. In regard to the abatement of the suit, the court found that, the deceased passed away, on 28^th March 2020, and the respondent’s application was filed on; 11^th August 2021, being one year after the demise of respondent.  However, the respondent avers that, they had no knowledge of the matter and only learnt of it late.  Be that as it may, I shall revert back to this issue, when I consider the applicant’s application, which is also alleged to have been filed against a deceased respondent.

27. A further issue raised in the preliminary objection, that the firm of; Ricar and Company Limited, Advocates, are improperly on record as the Notice of Change filed is regular, in that the firm of; M/s Njoroge & Company Advocates are still on record, and that pursuant to the same, Notice of Change and the motion should be struck out with costs.

28. Having considered the notice of Change and subsequent consent executed by the two law firms on record for the respondent, the court held that, it is not in the interest of justice, to strike out the documents, and that, the notice of change and consent filed as adequate to place the firm of; Ricar & Company Advocates on record.

29. Thus the ruling of the court on; 4^th November, 2021, resolved all points of law in the preliminary objection. As regard the respondent’s application dated 9^th August, 2021, I find that, having deferred the ruling on the applicant’s application dated; 12^th October 2020, scheduled for; 20^th September, 2021, and having allowed the respondent to file a response to that application, prayers (1) (2) and (3) of the respondent’s application dated; 9^th August 2021, are spent.

30. In that regard, the only remaining prayer is; whether the respondent should be heard on application dated; 12^th October 2020, before the ruling thereon is delivered. Even then, it suffices to note that, the respondent has filed a response to that application, therefore, basically that remaining prayer is spent.

31. The upshot of the above findings on the preliminary objection and/or the respondent’s application, is that, issues number(s), (a) to (c) raised for determination are spent, in that, the issue of the deceased respondent is proved by the death certificate produced.

32. Similarly, letters of administration ad litem, wherein Zanul Mohamed is named as the legal representative of the estate of the deceased resolves the issue of non-party to the suit.

33. Further, on the issues of the locus standi of the firm of Ricar & Company Advocates to represent the respondent, I find that, the notice of Change of Advocates, and subsequent amendment thereto, although objected, the firm has continued to participate in the matter and/or filed response(s) and/or submissions, that basically resolves the issue.

34. Be that as it may, the next issue to consider is whether or not, to strike out; the replying affidavit dated, 22^nd November, 2021, filed by applicant without leave be struck out, and/or uphold the notice of protest dated, 7^th December, 2021, filed by the applicant on the following grounds:

a. That, it is a clear abuse of court process;

b. That, new evidence/documents cannot be introduced after close of pleadings when parties have already been ordered to make their respective written submissions;

c. That, the said document will occasion serious prejudice to the Applicant/Advocate who has already filed its written submissions;

d. That, the service of the said document upon the Applicant/Advocate amounts to ambushing the Applicant/Advocate who has already filed its written submissions;

e. That, litigation must come to an end and a party cannot be allowed to abuse the process of the court through piecemeal litigation;

f. That, there is no order on record allowing you to introduce new document/evidence after close of pleadings;

g. That, the said document is a useless document as it cannot have retroactive effect on documents already filed.  

35. However, the notice of protest was opposed vide grounds of opposition filed by the respondent dated 14^th December, 2021 which state:

a. That, the consent dated; 25^th November 2021 was filed for purposes of showing that there is indeed no mischief by the Deceased Respondent representative Ms Zainul Mohamed and the Advocates for the deceased Respondent Messrs Agnes Njoroge Advocates;

b. There is no prejudice to be occasioned by the applicant in respect to the application before curt as the same is to be determined on merit;

c. That, the applicant is keen on causing confusion and shifting the focus of the court from the main triable issues to the issue of representation that has since been determined by the ruling of 4^th November 2021;

d. That, the consent dated 25^th November 2021, was filed on 26^th November 2021 and at the time pleadings had not closed and service of the same on the applicant was inadvertently made on 6^th December 2021 before service of the submissions pursuant to directions of 30^th November 2021;

e. No order has been baring the filing of the said consent.     

36. Having considered the arguments on the notice of protest, I find that, it is a fact additional documents should not be admitted after the court had ordered the parties to file submissions and without the leave of the court.  The document should be expunged from record.

37. However, without condoning the respondent’s conduct of filing documents without court’s leave, I find that, as indicated in the ruling of; 4^th November, 2021, this matter which is rather straight forward, has been convoluted by the conduct of the parties of filing multiplicity and endless of responses and/or submissions, in a rather strange way of conducting proceeding and/or delaying finalization thereof.

38. Be that as it may, it is always, in the interest of justice, to place all the material that can assist the court before it, albeit procedurally so. The striking out of pleading is draconian act that, should be avoided especially, where no prejudice will be occasioned to the opposing party, that cannot be compensated by damages. The notice of change of advocates that is a subject of protest basically deals with the transfer of a brief from to the respondent’s lawyers on record to the incoming firms.  I do find therefore that, the party that will be prejudiced, is the outgoing firm.

39. The irregularity of the respondents’ firm will not prejudice the applicant’s case, especially in view of the fact, that, the firm of Ricar & Company Advocates have extensively participated in the matter and the matter is advanced to the ruling stage.  To uphold the protest will not serve the interest of justice, as the applicant will suffer prolonged delay, yet they have been in court for far too long.  In that case, I shall not uphold the notice of protest.

40. The next substantive issue is whether, the respondent should be heard before, ruling on the application dated; 12^th October 2020 is delivered. In my considered opinion, the ruling delivered on 4^th November 2021, dealt with legal status of; Zainul Mohamed and/or the firm of; Ricar & Company Advocates.  Furthermore, the respondent was allowed to file a response to the application dated; 9^th August 2021.  Therefore, the only issue remaining is to determine the applicant’s application dated; 12^th October, 2020.

41. However, before I consider that application.  I wish to address other issues that arose from the arguments of the parties which I may not have dealt with.  First and foremost is the issue of; validity of the letters of Administration ad litem. The applicant argued that, it was obtained irregularly and in contravention of provisions of section 67 (1) of Law of Succession Act (Cap 160) Laws of Kenya.

42.However, my finding as already stated in the ruling of; 4^th November, 2021, is that, the issue can only be canvassed in the success cause where the same was issued.  In the same vein, the legal representation can only be cross examined on the same, in succession cause.

43. On the issue of the respondent’s failure to file a formal application to be enjoined in the matter as the legal representative of the deceased respondent, I find that, the same was not done. However, having been heard and the application of 9^th August, 2021, fully canvassed, the respondent has joined the matter by conduct, but, that does not condone the failure to seek for an order to be enjoined in the matter.

44. The applicant further argued that, the amended notice of change of advocates dated 28^th September 2021, and the limited grant, cannot operate retrospectively to validate notice of motion dated; 9^th August 2021. Further, the ccourts’ finding that, legal representation had capacity to appoint an advocate, does not pre-empt compliance with order 9 Rule 9 Civil procedure Rules, but again, I have already addressed that issue. I entirely concur with the applicant’s argument, but the matter has been canvassed as already stated.

45. The other issue left pending relates to abatement. The applicant argued that, the respondent’s application has abated and the respondent argued that, the application dated, 12^th October 2020, is a nullity having filed when respondent was deceased, to which the applicant responded that, the respondent’s argument, is red hearing.  That abatement does not apply to matters under Advocate Act and even then, the bill was filed 25^th May 2018 before demise of respondent.  The respondent submitted that, the bill having been struck out, the issue of abatement does not arise. In my considered opinion, the issue of abatement can only arise once the application for review is heard and determined.

46. As I move to the main application, I observe that, the learned trial Judge, The Hon Justice L Kimaru in his conclusion holding in the impugned ruling stated as follows: -

 “Should the applicant desire to seek a second opinion from the Court of Appeal, leave is hereby granted for such appeal to be filed.  It is so ordered.”

47. The question that arises is whether, the court having granted leave to the applicant to move to the Court of Appeal, this court can entertain an application for review.  Pursuant to that order, it is important to establish whether the applicant has lodged an appeal against the subject ruling.  I have now confirmed that the applicant did not file any appeal and does not wish to pursue any. That, instead, the applicant wishes to pursue the review application herein.  I shall therefore consider the same on merit.

48. I have already reproduced the reliefs sought for in the application herein.  As per the affidavit sworn by Zul Mohamed in support thereof, the applicant avers that, there is an apparent error on the face of the record, which if reviewed, will alter outcome of bill of costs.

49. That, upon securing a copy of the subject impugned ruling, he realized that, there are items in the bundle of documents, which perhaps, may have escaped the Honourable Court’s attention.  He lists these documents as here below reproduced: -

a. Letter dated 7^th April 2016 and enclosure (Page 64 A and Page 63 A) from Applicant to Respondent confirming Respondent’s instructions to the Applicant for preparation of an urgent Applicant to Court;

b. Email dated 10^th April 2016 and attached (Pages 66 and 107) from Respondent to Applicant explaining that the sum of Kshs.2,246,000 was bona fide proceeds of rent, and that there was nothing unlawful about the same.  This explanation would not have been necessary had the Applicant no instruction to act in the matter;

c. Bank Statements (Pages 108 – 135) pertaining to the affected account as provided by the Respondent to the Applicant to enable the Applicant to make appropriate application to Court. The Applicant could not have accessed the said Bank Statements without being given by the Account Holder, namely, the Respondent.  The Respondent would not have given the said statements to the Applicant had she not given instructions to the Applicant to act in the matter.  For avoidance of doubt, attached is a copy of an email dated 10^th April 2016 (marked “ZM 2”) which I have accessed from my computer whereby the Respondent forwarded the said Bank Statements to the Applicant.

d. Tenancy Agreement (Pages 136-141) in support of the Respondent’s contention that the amount received in her Bank Account was in fact bona fide payment of rent in terms of the said Tenancy Agreement.  The Respondent would have had no reason to provide this evidence to the Applicant had she not instructed the Applicant to prepare appropriate application for filing in Court.

e. Guarantee and Indemnity (Page 142) as signed by the Respondent’s Tenants’ guarontors as further proof of existence of the bona fide tenancy as between the Respondent and the main suspect, Quorandum Limited.

f. Email dated 14^th April 2016 (Page 143) from the Applicant to the Respondent requesting the Respondent to call at the Applicant’s office by prior appointment to sign the affidavit supporting the material application.

g. Email dated the 15^th April 2016(Page 144) confirming telephone conversations between me and the Respondent when she instructed me to hold on to the said application until further instructions from her.  At the last paragraphs of the said email the Respondent was specifically warned by the Applicant in the following terms:

i. “further note that costs have already been incurred in preparation of the Application irrespective of whether or not you opt to utilize the same.

h. Letter dated 10^th May 2016(Page 145) from Applicant to Respondent confirming the Respondent’s undertaking to settle costs arising from preparation of the said unutilized Application.  It is instructive to note that, the Respondent has not exhibited even one email or letter in support of her allegation of not having instructed the Applicant to act in the matter. 

50.  However, the respondents have opposed the application and avers that, there is no error apparent on the record and if the applicant is aggrieved they should pursue an appeal.

51. The application was disposed of by the parties filing submissions thereto. The applicant’s submissions from pages 1 to 4, generally reiterates, verbatively the contents of the application and the affidavit in support thereof, save to add that, as held in the case of; Otieono Ragot & Company Advocates vs National Bank of Kenya Limited [2021] eKLR, matters arising under the Advocates Act could be reviewed under; Order 45 Rule 1 of the Civil Procedure Rules, 2010, notwithstanding the non-applicability of the Rules.  In conclusion, the Applicant submitted that, there are sufficient reasons to review its ruling, in the interests of justice.

52. The Respondent on its part, submitted that, as per the decision of the Hon Justice L. Kimaru, the court considered all the bundles of documents presented before it and concluded that, the respondent did not give the applicant submissions to represent him, and in the particular matter.  That, the respondent acted on her own and did not want to file a suit due to the political nature of the matter.

53. That, by the applicant seeking review of the matters fully considered in the subject ruling, the court is being asked to sit on appeal on its own decision.  Furthermore, the evidence brought herein is not a new matter nor important matter.  The respondent cited several authorities as indicated in the submissions.

64. I have considered the application in the light of the materials placed before the court and I note that, the application is premised on the provisions of; Order 45 Rule 1 of the Civil Procedure Rules, 2010, which states that;

 “(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay”

55. The question is; has the applicant met the threshold of these provisions? The Black Law’s Dictionary, states that, to review a decision is; “to re-examine it judicially, a re-consideration; second view of examination; revision; consideration for purposes of correction.” The main object of which is to enable the courts to correct errors, in the decisions pronounced by them.  If the decree or an order made on the basis of some record and there has been some mistake or error apparent on the face of record, or some new and important matter or evidence is discovered after the passage of decree, or order or another such sufficient reasons, the application of review, may be made by the aggrieved party.

56. The grounds for review are settled by the aforesaid provisions that;

a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or

            (b) on account of some mistake or error apparent on the face of the record, or

            (c) for any other sufficient reason

57. The Applicant in this matter is relying on ground (a) above.  It is stated at ground (a) of the application that;

“There is an obvious mistake and/or error apparent on the face of the record, which if reviewed and looked at afresh will alter the outcome of the said bill of costs”.

58. In the case of; Chandrakhant Joshibhai Patel -v- R (2004) TLR, 218 the court held that, an error stated to be apparent on the face of the record:

"...Must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions."

59. However, I note that, the applicant herein has not specifically indicated or identified the particular error on the record.  In fact, the applicant avers at paragraph 9 of the affidavit that, allegedly, the court did not consider the documents listed thereunder.  The question is; does the failure to consider the subject documents (if that is the case), amount to an error apparent on the face of the record?  Is it a matter of review or appeal?

60. In that regard, I have read through the impugned decision and note that, the court indicated under page 3 paragraph 2 that, it has evaluated materials and/or the bundle of documents presented to it by the applicant and arrived at the conclusion that, it was evident, the respondent did not give the applicant written instructions to represent her.  In fact, the court proceeds to make reference to some of the documents considered.  It therefore follows that, if the alleged documents were presented to the court then, they were considered.

61. In that case, I find that, if this court were to evaluate the documents afresh, it will be acting as an appellate court and outside the threshold of review application, under Order 45 Rule 1 of the Civil Procedure Rules, 2010.  Furthermore, from the content of the application, the applicant seems to be challenging the merit of the decision of the court.  If that is so, then the cause of action available to the applicant is to appeal against that decision and not seek for review as herein.

62. In the given circumstances, I find that, the application lacks merit and I hereby dismiss it with no orders as to costs.

It is so ordered 

DATED, DELIVERED AND SIGNED ON THIS 21^ST DAY OF MARCH, 2022

GRACE L. NZIOKA

JUDGE

In the presence of;

Mr Zul Mohamed for the Applicant

Ms Kariuki for the Respondent

Edwin Ombuna; Court Assistant