[2001] KEHC 798 (KLR)
The court held that the purpose of the amendment to Order 3 (9) (a) of the Civil Procedure Rules was to prevent advocates from taking over cases at the execution stage without informing the previous advocate. In this case, the previous advocate was aware of and consented to the change, as evidenced by handing over...
Source-derived case information.
- Citation
- [2001] KEHC 798 (KLR)
- Parties
- Plaintiff: Ahmed Abdalla Maawy; Defendant: Southern Travel Services Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 949 of 1997
- Procedural Posture
- Civil Suit / Preliminary Objection Ruling
- Outcome
- preliminary_objection_overruled
- Legal Topics
- Change of Advocates, Leave of Court, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Abdalla Maawy
Plaintiff
Southern Travel Services Ltd.
Defendant
Procedural Posture
Civil Suit / Preliminary Objection Ruling
Legal Issues
- 1 Whether the advocate for the applicant is properly on record without seeking leave of court as required by Order 3 (9) (a) of the Civil Procedure Rules.
- 2 Whether failure to seek leave is fatal where the previous advocate was aware and consented to the change.
Ratio Decidendi
The court held that the purpose of the amendment to Order 3 (9) (a) of the Civil Procedure Rules was to prevent advocates from taking over cases at the execution stage without informing the previous advocate. In this case, the previous advocate was aware of and consented to the change, as evidenced by handing over the file. Since the respondent suffered no prejudice and the procedural requirement was substantially met, the court found that the failure to seek leave was not fatal. The preliminary objection was therefore overruled, and the applicant's advocates were held to be properly on record.
Court Disposition
preliminary_objection_overruled
Orders
- The preliminary objection is overruled.
- The advocates for the applicants are held to be properly on record.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT NO. 949 OF 1997
AHMED ABDALLA MAAWY…………….………….…………………… PLAINTIFF VERSUS SOUTHERN TRAVEL SERVICES LTD.…………………………...DEFENDANT
RULING
Mr. Kutuku, the Learned Counsel for the Respondent raised a preliminary objection that the advocate for the applicant is not properly on record because he did not seek the court’s leave as required by the new amended Order 3 (9) (a) of the Civil Procedure Rules. Mr. Okwach, the Learned Counsel for the applicant while accepting that they had not sought the court’s leave said that the situation here did not warrant seeking of the leave as the previous advocate was aware of the change of advocates and indeed passed the entire file to his firm.
The mischief sought to be lured by this amendment was the rampant practice which had sprung up where advocates were taking up cases at the last stages of execution without informing the advocate who had been acting for the client all along. In this instant case the previous advocate was aware of the change and had no objection as evidenced by his handing over the file to Mr. Kwach since the respondents are aware of this change and there is no prejudice suffered.
I therefore find that the lawyers who took over from the previous lawyers are properly before the court not withstanding that leave was not sought from the court. In other words I do not find the non observance of this procedure to be fatal. The objection is therefore overruled and the advocates for the applicants are held to be properly on record.
Delivered and dated this 7th day of March, 2001. KASANGA MULWA JUDGE