[2009] KEHC 3400 (KLR)
The court found that the notice of appointment of advocate filed by Anil Suchak Advocate did not contravene Order III rule 9A of the Civil Procedure Rules because it did not seek to replace the existing advocates but merely appointed another advocate to appear for the 2nd Respondent. The law envisages the filing of...
Source-derived case information.
- Citation
- [2009] KEHC 3400 (KLR)
- Parties
- Appellant: AL-AMIN INSURANCE AGENCY; Respondent: ABDULGADER SHARIF SWALEH; Respondent: JAMAL SHARIF SWALEH; Respondent: OMAR SHARIFF t/a JINGO TOURS AND SAFARIS; Respondent: M.A. JAGANI AUCTIONEERS
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 128 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Notice of Appointment of Advocates and for Security for Costs
- Outcome
- motion dismissed
- Legal Topics
- Change of Advocate, Notice of Appointment, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
AL-AMIN INSURANCE AGENCY
Appellant
ABDULGADER SHARIF SWALEH
Respondent
JAMAL SHARIF SWALEH
Respondent
OMAR SHARIFF t/a JINGO TOURS AND SAFARIS
Respondent
M.A. JAGANI AUCTIONEERS
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Notice of Appointment of Advocates and for Security for Costs
Legal Issues
- 1 Whether the notice of appointment of advocate filed by Anil Suchak Advocate for the 2nd Respondent should be struck out for contravening Order III rule 9A of the Civil Procedure Rules.
- 2 Whether the 2nd Respondent should be ordered to deposit Kshs.164,356 as security for costs.
Ratio Decidendi
The court found that the notice of appointment of advocate filed by Anil Suchak Advocate did not contravene Order III rule 9A of the Civil Procedure Rules because it did not seek to replace the existing advocates but merely appointed another advocate to appear for the 2nd Respondent. The law envisages the filing of a notice to act in person or a notice of change of advocate, not a notice of appointment as was done here. The court held that there was no merit in the application to strike out the notice or to order security for costs, and therefore dismissed the motion.
Court Disposition
motion dismissed
Orders
- The notice of motion dated 12th March 2009 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 128 of 2008
AL-AMIN INSURANCE AGENCY ……...................……APPELLANT
VERSUS
ABDULGADER SHARIF SWALEH
JAMAL SHARIF SWALEH
OMAR SHARIFF t/a
JINGO TOURS AND SAFARIS……..……………..1ST RESPONDENT
M.A. JAGANI AUCTIONEERS ……......…….……2ND RESPONDENT
RULING
By a notice of motion dated 12th March 2009, the firm of James Gathuku & Co. Advocates applied for the Notice of Appointment of Advocates filed by the firm of Anil Suchak Advocate to be struck out. There is also an alternative prayer seeking for an order directing the 2nd Respondent to deposit a sum of Kshs.164,356/- as Security for costs of the applicant herein. The motion is supported by the affidavit of James Kamanja Gathuku sworn on 17. 3.2009.
Anil Suchak Advocate filed the replying affidavit of Mohamed Jaffer Jagani sworn on 9th April 2009 to resist the motion.
There is no doubt that the firm of James Gathuku & Co. Advocates has been appearing for the 2nd Respondent until this court pronounced judgment on appeal on 20. 2.2009. Being dissatisfied with this court’s decision, Abdulgader shariff Swaleh, Jamal sheriff Swaleh and Omar Shariff t/a. Jingo Tours & Safaris filed a notice of appeal to intimate their intention to appeal in the court of appeal. The Notice of Appeal is dated 2nd March 2009.
On 12th March 2009, Anil Suchak Advocate filed a Notice of Appointment to Act for M.A. Jagani & Sons Ltd, the 2nd Respondent herein with effect from 10th March 2009 . Mr. Gathuku is of the view that this notice was filed contrary to the provisions of Order III rule 9A of the Civil Procedure Rules, hence it should be struck out. A critical look at the provisions of Order III rule 9A of the Civil Procedure Rules will reveal that the law envisaged the filing of a notice to act in person or a notice of change of advocate. The document sought to be struck out is a notice of appointment of Advocate. That notice did not seek to replace the firm of James Gathuku & Co. Advocates. It merely stated that the firm of Anil Suchak Advocate had been appointed to appear for the 2nd Respondent. It is not therefore true that the firm of James Gathuku & Co. Advocates has blocked from accessing the proceeds of the decree. I find no merit in the motion. It is dismissed with no order as to costs.
Dated and delivered at Mombasa this 8th day of June 2009.
J.K. SERGON
J U D G E