Curzon v Muthama & 2 others

of the suit on June 12, 2022 when served with a taxation notice and immediately instructed his lawyer who entered appearance and appeared before Hon. Diana Orago on June 13, 2022 and was informed that the correct case number was ELC No 993 of 2016 and not ELC No 933 of 2016 as was indicated on the Taxation notice. 3. The Applicant further stated that he is an Auctioneer who was acting on the instructions of the 1st and 2nd defendants and who the court has found judgement against them specically citing them in the three orders, hence they should be ordered to meet the cost. 4. In opposition to the Application, counsel for the Plainti swore an adavit dated August 16, 2022 stating that the 3rd Defendant was duly served with summons and appointed an Advocate who on August 29, 2016 led a memorandum of Appearance and a Replying adavit sworn by the 3rd Defendant in opposition of the Plainti’s application seeking orders of injunction. Further, he stated that the 3rd Defendant broke in the suit property that was occupied by the Plainti in the pretense that he was recovering rent owed to the 1st and 2nd Defendants and that his counsel fully participated during the prosecution of the suit and cross examined the Plainti on July 26, 2018. 5. Mr Ojiambo advocate deposed that after the court issued summons on August 19, 2022, he tasked Juma Danga, a process server, to eect service upon the 3rd Defendant at his oce on 2nd Floor, Wami House along Jogoo Road, Nairobi on the same day. He added that the 3rd Defendant declined to receive service but directed the process server to serve the summons and all pleadings upon his Advocates, Osundwa & Co Advocates who received and stamped the same. 6. Counsel averred on behalf of the Plainti/Respondent that upon close of the Plainti’s case, the 3rd Defendant sought leave to le his Defence and witness statement and the court granted him 21 days to do so. He further averred that on 20/9/2018 the 3rd Defendant was given further 14 days to le the defence and after several adjournments for failure to le the same, parties took directions to le their submissions for nal determination of the case. 7. Further the Plainti stated that when he led an application dated 13/3/2020 seeking to reopen his case, the 3rd Defendant vehemently opposed the same vide grounds dated 22/2/2021 but still neglected to le his defence and witness statement. Thus, the Applicant cannot say he was unaware of the suit and the subsequent judgement rendered by the court in his presence of his counsel. That he has not laid a basis to be exonerated from paying the costs of the suit as ordered in the judgement. 8. The Plainti led his submissions dated November 22, 2022 outlining the background of the case and reiterating that the 3rd Defendant was duly served and given ve (5) opportunities to oer evidence in his defence but resorted to seeking adjournments to deliberately delay the determination of the suit. 9. The Plainti submits that the 3rd Defendant’s application is premised on false grounds and depositions thus does not deserve the court’s mercy and in support, cited the court of appeal in Nai Civ Appl/E213/2022 Martin Ngao Muthama v Paul Curzon where that court dismissed an application premised on unmitigated false depositions. 10. The Plainti further submitted that the application raises issues meant for appeal as it premised on points of law and attacking the merits of the judgement and the same will re-open litigation. He cited the case of Ferrotech v Mwadziwe Ali [2021]. Further, the Plainti argued that the application has not met the threshold for review and stay of taxation proceedings asserting that for an order to be reviewed, a mistake must be an obvious and clear inadvertence as held in Harrison Amolloh Okumu v Perez Okumu & 3 others [2021]eKLR. Also, the 3rd Defendant admitted that the proceedings and https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19132/eng@2023-07-27 2

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judgement are not ex parte hence his motion seeks to awaken a functus ocio court and re deploy it on an already determined cause. 11. The Plainti also submitted that there has been inordinate delay in ling this application for review since the judgement was entered on November 16, 2021 in the presence of counsel for the 3rd Defendant. To explain the delay, the Plainti cited the Court of Appeal decision in Julius Oloo v Lilian Wanjiku [2019] which held that an application for review must be brought without unreasonable delay. 12. The Plainti arms that the 3rd Defendant acting on instruction of the 1st and 2nd Defendants as their agent does not excuse his own acts of fraud as it was those fraudulent acts that were instrumental in the 1st and 2nd Defendants grabbing and possessing the Plainti’s property. He quoted the case of NSSF V Ankhan Holding Ltd 2006 where the court established that no one can escape liability for his fraud by saying that they acted on behalf of someone. 13. I have not seen the applicant’s submissions on record and the inference drawn is that the application has not been prosecuted. Analysis 14. The Plainti led a suit against the 1st,2nd,3rd and 4th Defendants which was determined in his favour with costs to be paid by the 1st to 3rd Defendants. The 3rd Defendant led this application seeking to set aside the order of costs made against him on the grounds that he was not aware of the suit and that he acted on behalf of the 1st and 2nd Defendants hence should be exempted from paying cost. The Plainti vehemently opposed the motion stating that the 3rd Defendant was duly served with court documents and participated in the proceedings. That his own acts of fraud cannot be excused as they were instrumental in 1st and 2nd Defendants grabbing and possessing the Plainti’s property. 15. The issue for this court to determine is whether the orders entered against the 3rd Defendant should be varied and or set aside for the reasons stated on the face of the application. The Plainti has explained in detail how he eected service of summons to enter appearance on the 3rd Defendant including taking the court documents to his oce. That the 3rd Defendant directed the process server to his advocate, Osundwa and Co advocates who was served and who indeed led a memo of appearance which is on the court record. As deposed by the Plainti/respondent, the record does bear that the said advocate participated in the proceedings on behalf of the 3rd Defendant after there was a notice of change led for his representation of the 1st and 2nd Defendants. 16. Section 107 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 108 is also to the eect that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, while section 109 states that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The burden therefore lies with the 3rd Defendant to prove that the service eected on him was irregular. 17. In the case of Shadrack arap Baiywo vs. Bodi Bach KSM CA Civil Appeal No 122 of 1986 [1987] eKLR, the Court of Appeal quoting Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 stated that: “ There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an adavit of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19132/eng@2023-07-27 3

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process server is admissible in evidence and in the absence of contest it would normally be considered sucient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service.” 18. There is an adavit of service led detailing how service was eected upon the 3rd Defendant and it is also on the court record that a memorandum of appearance was led but no defence led. It is also in the court record that counsel for 3rd Defendant was present during the hearing and cross examined the Plainti on his evidence. It is also notable that the 3rd Defendant did not object that the Advocates, Osundwa & Co Advocates acted under his instructions. 19. It is a general rule law that Advocate’s failure to execute his client’s instructions amounts to professional negligence. This was the position in Water Painters International -v- Benjamin Ko’goo t/a Group of Women in Agriculture Kochieng (Gwako) Ministries (2014) eKLR, where the Court stated that; “ …in the words of justice Ringera in Omwoyo vs African Highlands & Produce Co. Ltd (2002 J) KLR, time has come for the legal Practitioners to shoulder the consequences of their negligent acts of omissions like other professionals do in their elds of endeavour. The Plainti should not be made to shoulder the consequences of negligence of the defendant’s Advocates. This is a proper case where the Defendant’s remedy is against its Advocate, while suing advocates for professional negligence and not setting aside the judgment.” 20. Like in the case above, the 3rd Defendant/Applicant has recourse against the advocate who acted without instructions instead of making the Plainti to suer the inconvenience of re-opening his case. I note from the record that the 3rd Defendant was given numerous chances to le a defence in the matter but was negligent. He is therefore not deserving the exercise of this courts discretion in his favour. As a result, the argument that there was no service of summons to enter appearance is dislodged for lack of proof. 21. The second argument pleaded was the Applicant faulting the order made against him when there existed an agency relationship between him and the 1st and 2nd Defendants. This argument borders on the merit of the decision which ought to have formed a ground for appeal. Be that as it may, the Plainti/Respondent has highlighted the actions of the 3rd Defendant which made him liable specically that he contributed to the dispossession of the Plaintis property. Further, there was no evidence or submission presented to the court by the 3rd Defendant for determination on the apportioning of costs. The awarding of costs is a discretion of the court and the Applicant has not made a basis why this court should exercise the discretion for review the decree on costs. 22. Consequently, I nd no merit in the application and proceed to dismiss it with costs to the Plainti/ Respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF JULY 2023 A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19132/eng@2023-07-27 4

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