[2009] KEHC 3586 (KLR)
The court found that on 29/9/08, Wachakana & Co. Advocates were the duly authorized advocates on record for the second plaintiff, as no change of advocate had been filed in accordance with Order 3 Rules 6 and 7 of the Civil Procedure Rules. Therefore, Mr. Wachakana was entitled to act and represent the second...
Source-derived case information.
- Citation
- [2009] KEHC 3586 (KLR)
- Parties
- Plaintiff: Benjoh Amalgamated Ltd.; Plaintiff: Muri Coffee Estate Ltd.; Defendant: Kenya Commercial Bank Ltd.; Defendant: Bidii Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 494 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Taxation and Setting Aside Order
- Outcome
- application dismissed with costs to both defendants
- Legal Topics
- Change of Advocate, Discontinuance of Suit, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjoh Amalgamated Ltd.
Plaintiff
Muri Coffee Estate Ltd.
Plaintiff
Kenya Commercial Bank Ltd.
Defendant
Bidii Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Taxation and Setting Aside Order
Legal Issues
- 1 Whether the application to stay taxation proceedings and set aside the order of 29/9/08 is merited.
- 2 Whether the advocate on record had authority to discontinue the suit on behalf of the second plaintiff.
- 3 Whether the requirements for change of advocate under the Civil Procedure Rules were complied with.
Ratio Decidendi
The court found that on 29/9/08, Wachakana & Co. Advocates were the duly authorized advocates on record for the second plaintiff, as no change of advocate had been filed in accordance with Order 3 Rules 6 and 7 of the Civil Procedure Rules. Therefore, Mr. Wachakana was entitled to act and represent the second plaintiff, including discontinuing the suit. The application to stay taxation proceedings and set aside the order was without merit, as the procedural requirements for change of advocate had not been complied with, and the orders made on 29/9/08 were valid. The application was dismissed with costs to both defendants.
Court Disposition
application dismissed with costs to both defendants
Orders
- The application dated 10.2.09 is dismissed with costs to both defendants.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 494 of 2008
1. BENJOH AMALGAMATED LTD.
2. MURI COFFEE ESTATE LTD. …………………….PLAINTIFFS
VERSUS
1. KENYA COMMERCIAL BANK LTD.
2. BIDII KENYA LIMITED ……………………..……DEFENDANTS
R U L I N G
Application dated 10. 2.09 filed on behalf of second plaintiff seeks stay of taxation proceedings now before Taxing Officer including execution of taxed costs. Secondly, that the court do set aside the order made by the court on 29/9/08. The application is based on the grounds that the Board of Directors of second plaintiff had appointed the firm of Kingara, Advocates to act for them in this case in place of Wachakana & Co. Advocates.
According to the record of 29/9/08 there was chamber summons filed by Wachakana Advocates on behalf of both the plaintiffs. M/S Oraro & Co. Advocates have not been on record in this suit. The plaint together with verifying affidavit was filed by M/S Wakachana Advocates.
On this day the appearances were:
1. Mr. Wachakana for both plaintiffs
2. Mr. Nyachoti for first defendant
3. Mr. Satish Gautama & Mr. Sehmi for second defendant
The proceedings proceeded as indicated in page 9 of proceedings, the
Application was coming for hearing inter partes. Mr. Wachakana addressed the court first and stated:
“I wish to notify the court that the second plaintiff Muiru Coffee Estate Ltd. Wishes to discontinue the suit against both defendants.”
Mr. Gautama said the notice had to be in writing upon which Mr. Wachakana proceeded to write out the notice by long hand and the same was placed in court file. The orders were subsequently made accordingly.
It is now submitted that the said Mr. Wachakana had no instructions to seek such orders and the same were made in;
“Error and the rights of the 2nd plaintiff were trampled on.”
The record shows that on that dated 29/9/08, the advocate on record was M/S Wachakana and there had been no change of advocate filed. The issues of change of advocates in a suit is governed by the provisions of Civil Procedure Rules, Order 3 Rules 6 and 7.
It is clear that these provisions were not complied with and therefore the court finds that on that date 29/9/08, the advocate authorized to act and represent the 2nd plaintiff in this case was Mr. Wachakana or his firm. The application has no merit and the same is dismissed with costs to both defendants.
Orders accordingly.
DATED and DELIVERED at Nairobi this 14th day of May 2009.
JOYCE N. KHAMINWA
JUDGE