Masaku Teachers Investment Ltd v Kioko & 4 others; Kasimba & 202 others (Interested Parties)

b. That the law rm of Andrew Makundi & Company Advocates be ordered and directed to cease acting for the plainti Masaku Teachers Investments Limited. c. That costs be in the cause. 2. The application is premised on the grounds on its face as well as the supporting adavit sworn on December 8, 2021 by Stanley Kyelenzi the Chief Executive Ocer of Kwetu Savings and Credit Society Limited (formerly known as Masaku Teachers Savings and Credit Cooperative Society Limited) hereinafter referred to as Kwetu Sacco, the 4th defendant in this suit. 3. The applicant’s case is that when former ocials of the 4th defendant were removed from oce, it was noted that Masaku Teachers Investment Limited, the plainti herein was incorporated on instructions of and using funds from the 4th defendant by its former ocials namely James Mvinya, Israel Nzallu, Richard Masila, Patrick Sove, David Mwanthi, David Kioko, Cosmas Mwololo, Wilson Mutunga, Lawrence Mutunga and Josephat Kalonzo who caused themselves to be registered as shareholders and directors of the plainti. That this led the 4th defendant to le Machakos High Court Misc. Application No. 35 of 2015 Kwetu Sacco v. James Muiya and Others, seeking to have the register of the plainti rectied. That upon hearing the aforesaid suit, the High Court found in favour of the 4th defendant herein and allowed the rectication of the register by removing the names stated above and replacing them with the 4th defendant and its nominee. 4. They stated that this suit was led between the time the aforesaid shareholders of the plainti held oce and before the decision by the High Court was made. That this suit was led by the rm of Andrew Makundi and Company Advocates. That as the aforesaid shareholders were replaced by the 4th defendant and its nominee in the plainti’s shareholding, the 4th defendant is desirous to have Ms Andrew Makundi Advocates replaced but that the said rm is adamant that it must act although the persons that instructed the said rm are no longer shareholders of the plainti. They maintained that the action by Andrew Makundi Advocates to continue acting for the plainti without the consent and blessings of the 4th defendant amounted to misconduct, which this court should address. 5. They stated that although the decision to replace the above plainti’s former shareholders with the 4th defendant and their nominee was made on February 26, 2018, the rectication has not been done at the company’s registry as the 4th defendant’s counsel has had challenges in getting the le as the company registry and further that even after the le was traced, the ocials in the registry have demanded for copies of identity cards and passports photographs of the plainti’s former shareholders stated herein, but they continue to remain hostile and it is not possible for the 4th defendant to get the same. He attached plainti’s memorandum and articles of association, and order in Machakos High Court Misc civil application No 35 of 2015. 6. The application is opposed. James Mweu Muiya swore a replying adavit dated May 10, 2022. He stated that he was a shareholder of the plainti/respondent. He maintained that the application was unfounded, incompetent, bad in law and an abuse of the court process. He stated that the notice of motion herein has no basis because in the meetings held on June 10, 2014 and March 7, 2022 by the plainti’s directors, it was unanimously agreed that the rm of Andrew Makundi Advocates should handle all of the plainti’s matters. 7. He deposed that this suit was led in 2015 and that there has been no test suit and that this case is within the ELC jurisdiction which has parallel jurisdiction which is not lower than the High Court and that the decision by the High Court cannot override the decision of this court. He stated that the ruling of the High Court in High Court Misc civil application 35 of 2015 did not refer to this case or the issue of representation by the rm of Andrew Makundi Advocates. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18599/eng@2023-07-05 2

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8. He averred that the issue in this suit is whether or not the suit land was transferred illegally but not the choice of advocates. He stated that the decision in Machakos High Court Misc civil application No 35 of 2015 has been appealed against in the Court of Appeal. According to him, the decision of that court only dealt with issues of subscribers and referred to 20,000 shares whereas the subject matter herein is land and does not touch on the issue of representation. 9. It was the respondents position that under the Constitution of Kenya 2010, a litigant has a right to be represented by the rm of Andrew Makundi & Co Advocates. Further that an advocate has the right to act for any client and that an advocate can only be barred in a matter where it is demonstrated that he is in a position of conict of interest. That the applicant has not demonstrated conict of interest against the rm of Andrew Makundi Advocates. He stated that the respondents and interested parties herein will suer irreparably if orders sought are granted but that the applicants will not suer prejudice if the rm of Andrew Makundi continues to act for the plaintis. he attached minutes of the plainti dated June 10, 2014 and a notice of motion dated December 17, 2019 without a case number. 10. The application was canvassed by written submissions. On record are the plainti/respondent’s submissions dated November 3, 2022. Counsel for the plainti regurgitated the contents of the plainti/respondent’s replying adavit and submitted that the rm of Andrew Makundi was instructed by the plainti to act for them in this matter and that the applicant’s rely on the decision made by Machakos High Court Misc. Application No. 35 of 2015, when the same has been appealed against. Counsel maintained that the 2010 Constitution grants litigants a right to be represented by counsel of their choice and that the plainti chose to be represented by the rm of Andrew Makundi. It was submitted further for the respondent that he who alleges must prove and that the applicants had not proved any misconduct on the part of the rm of Andrew Makundi. Counsel maintained that an advocate can only be barred from acting in a matter where it is shown that there is a conict of interest and that in this matter no such proof was given by the applicants. Analysis and Determination 11. I have carefully considered the application, the replying adavit and submissions. The issue before court is whether the rm of Andrew Makundi is guilty of misconduct and whether the said rm ought to be directed by this court to cease acting for the Plainti. 12. Section 56 of the Advocates Act provides for the disciplinary powers of the court as follows; "Nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the judges of the court to deal with misconduct or oences by an advocate, or any person entitled to act as such, committed during, or in the cause of, or relating to, proceedings before the Chief Justice or any judge. 13. Section 60 of the Advocates Act denes professional misconduct by an advocate to include conduct incompatible with the status of an advocate. In this matter the applicants stated that as the 4th defendant and its nominee are the plainti’s shareholders who replaced James Muiya and other former shareholders by dint of the order of the High Court in Machakos Misc Application No 35 of 2015, that the 4th defendant is desirous of replacing the law rm of Andrew Makundi with an advocate of their choice but the said law rm remains adamant. The applicant maintains that this act by the said law rm amounts to misconduct. On the other hand, Mr James Muiya swore a replying adavit stating that he was one of the plainti’s shareholders and that the plainti instructed the rm of Andrew Makundi to act for them. He attached minutes dated June 10, 2014 to that eect and maintained that the plainti has a constitutional right to choose an advocate of its choice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18599/eng@2023-07-05 3

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14. Article 50 (2) (g) of the Constitution provides for every person’s right to a fair trial which includes a right to choose and be represented by an advocate of their choice. Having considered the application, the applicant’s position being that James Muiya and other former directors of the plainti have no authority to appoint an advocate for the plainti. As it is not disputed that this suit was led in 2014, when Mr James Muiya and his colleagues were directors of the plainti and before the orders in Machakos High Court Misc Application No 35 of 2015 were made, and therefore it is my view that their appointment of Andrew Makundi Advocates to act for the plainti, was properly within their right and the advocate cannot be faulted for ling this suit. 15. On whether there is misconduct, the applicants maintained that they desire to replace the rm of Andrew Makundi Advocates but that the said rm is adamant and that the latter’s instance on continuing to act for the plainti without the blessing of the 4th defendant amounts to misconduct. I note that the applicants only state that they desire to replace the rm of Andrew Makundi. The High Court in Machakos High Court Misc Application No 35 of 2015 replaced Mr James Muiya and his other shareholders with the 4th defendant and its nominee. Although Mr James Muiya stated that there was an appeal against the decision of the High Court, nothing was attached to the replying adavit to show that there was a pending appeal. The notice of motion attached and dated December 17, 2019 had no case number neither any endorsement by the Court of Appeal to show that the same was led at the Court of Appeal. In the premises therefor, I nd and hold that the respondent did not prove that there is an appeal led or pending against the decision in Machakos High Court Misc Application 35 of 2015. 16. The above being the position, it is therefore clear that the 4th defendant and its nominee are the plainti’s shareholders with the authority to choose which advocates should act for the plainti. The applicants state that they desire to replace the rm of Andrew Makundi in this matter but that the said rm remains adamant and continues to act for the plainti. Having considered the application, I nd no evidence to show that the applicants desire to replace the rm of Andrew Makundi Advocates. There was no notice of change of advocates led and attached to the supporting adavit to demonstrate their desire to change advocates and nothing stops the current shareholders of the plainti to instruct a new advocate to le notice of change of advocates in this matter. Therefore the allegation that the rm of Andrew Makundi has remained adamant and continues to act for the plainti is not in my view proof of misconduct on the part of the said law rm. The plainti being a limited liability company is a legal entity whose legal mind is exercised through its directors and is at liberty to replace the rm of Andrew Makundi by instructing an advocate of their choice for that purpose. As there is no notice of change of advocates or notice of intention to act in person led to replace the rm of Andrew Makundi then it is not for this court to order the rm of Andrew Makundi to cease acting as it is not the function of this court to hire or re a litigant’s advocate. The plainti is aware that the right to hire and re its counsel is solely in its hands and it does not need the assistance of this court to exercise such right. 17. In the premises, I nd no merit in the notice of motion dated December 8, 2021 and the same is hereby dismissed. In view of the circumstances obtaining herein and the relationship between the plainti and the 4th defendant, I make no order as to costs. 18. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 5TH DAY OF JULY, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM A. NYUKURI https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18599/eng@2023-07-05 4

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JUDGE In the Presence of; Mr. Odawa for Interested Parties Mr. Kiluva holding brief for Mr. Makundi for Plainti/Respondent No appearance for Defendant/Applicant Josephine – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18599/eng@2023-07-05 5

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