[2019] KEHC 1898 (KLR)
The court held that the failure to endorse the consent for change of advocate as a court order was a clerical omission attributable to the court registry, not the litigant or counsel. There was no dispute between the outgoing and incoming advocates, and no prejudice was demonstrated by the applicant/defendant that...
Source-derived case information.
- Citation
- [2019] KEHC 1898 (KLR)
- Parties
- Plaintiff: Doshi Iron Mongers Limited; Defendant: Kenya Revenue Authority; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 105 of 2006
- Procedural Posture
- Stay Application / Ruling on Application to Strike Out Replying Affidavit and Directions on Stay Pending Appeal
- Outcome
- Application to strike out the Replying Affidavit declined; consent for change of advocate deemed endorsed; matter stood over for further hearing; status quo to be maintained.
- Judges
- CA Otieno
- Legal Topics
- Change of Advocate Post Judgment, Replying Affidavit, Order 9 Rule 9, Right to Counsel of Choice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Doshi Iron Mongers Limited
Plaintiff
Kenya Revenue Authority
Defendant
The Attorney General
Defendant
Procedural Posture
Stay Application / Ruling on Application to Strike Out Replying Affidavit and Directions on Stay Pending Appeal
Legal Issues
- 1 Whether a replying affidavit filed by an advocate not formally on record should be struck out.
- 2 Whether failure to endorse a consent for change of advocate as a court order invalidates documents filed by the new advocate.
- 3 Whether expunging the affidavit would serve the interests of justice.
Ratio Decidendi
The court held that the failure to endorse the consent for change of advocate as a court order was a clerical omission attributable to the court registry, not the litigant or counsel. There was no dispute between the outgoing and incoming advocates, and no prejudice was demonstrated by the applicant/defendant that would result from allowing the Replying Affidavit to remain on record. Striking out the affidavit would only cause unnecessary delay and would not serve the interests of justice. The court further emphasized that procedural rules should not be used to defeat substantive justice or to punish parties for administrative oversights by court staff. The consent for change of advocate...
Court Disposition
Application to strike out the Replying Affidavit declined; consent for change of advocate deemed endorsed; matter stood over for further hearing; status quo to be maintained.
Orders
- The application to strike out the Replying Affidavit is declined.
- The consent for change of advocate is deemed endorsed as of the date of filing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 105 OF 2006
DOSHI IRON MONGERS LIMITED..........................................................PLAINTIFF
VERSUS
1. KENYA REVENUE AUTHORITY
2. THE ATTORNEY GENERAL...........................................................DEFENDANTS
R U L I N G
1. This file was fixed today for the hearing of an application by the defendant, as judgment debtor, seeking stay pending appeal. That application initially came to court on the 9/9/2019 and again on 12/9/2019 before Nyakundi J, as the vacation duty judge, when todays date was fixed. On 12/9/2019, the proceedings of the court say that Mr. Oluga attended court and addressed the court as the advocate appearing for the plaintiff/decreeholder and addressed the court in the presence of Ms. Lavuna Counsel for Applicant and was granted leave to file a Replying Affidavit in the presence of the said counsel.
2. Pursuant to that Order a Replying Affidavit was filed on 25/9/2019. By the date of filing the Replying Affidavit, the said counsel had on the 11/9/2019, a day before appearing before judge Nyakundi, filed a consent between his firm and the firm of Anjarwalla & Khanna Advocate permitting him to take over the conduct of the matter.
3. It is however clear from the record that the said consent was never endorsed as an order of the court and therefore when the file was called out today, Ms. Odundo, Advocate, sought from the court an order that the Replying Affidavit be struck out for having been filed by an advocate who was not properly on record.
4. In opposing the request Mr. Oluga Said that there was no prejudice to be visited upon the Applicant/defendant to merit the drastic order of striking out the Affidavit being made.
5. I have noted that there is no dispute between Mr. Oluga’s firm and the firms he is taking over the brief from. I also appreciate the purpose of Order 9 Rule 9 to have been intended to protect an advocate who has acted in the matter from being ejected from the brief unceremoniously after judgment without regard to his lien on the file as to fees. It is a provision that must be left to guide the relationship between an advocate and his client and should never be exhaulted to the level of granting to an adversary the right to dictate what advocate his opponent instructs. To say otherwise would be to negate on a litigants right under article 50(2)g guaranteeing the right to have an advocate of own choice.
6. In addition, I have not been told that failing to expunge the Affidavit from the Record would visit any prejudice upon the Applicant/Defendant. In my view I cannot imagine any such prejudice. The only prejudice that may result is that, if I expunge the Affidavit, I would grant leave to the same advocate leave to file an Affidavit of the same effect and thereby delay the conclusion of the matter. I am sure that would be a prejudice on both sides and a negation on the courts overriding objective to administer justice expeditiously.
7. I am hesitant to wade in the mud of delay and decline the request to strike out for tending to serve no interests of substantial justice.
8. The last point is my understanding on how the court system works. It is that once a consent is filed, it is the Registry personnel to undertake the clerical duties of having the consent noted in the court file and having the file before a deputy Registrar for endorsement. In that process a litigant and his counsel have totally no role to play. It would be an act in punishing a litigant for no mistake of theirs to expunge a document on the basis of a default by the Registry staff.
8. The upshot is that I decline to expunge the Replying Affidavit because to do that would not serve the interests of justice. Instead I deem the consent as endorsed and the Replying Affidavit filed pursuant thereto, properly filed. Let the matter proceed on the basis of the papers filed as at today.
9. I further note that it is now 3. 25pm and there is a meeting for the station I have to attend hence this matter cannot be reached. It is stood over to the 10/12/2019.
10. In the meantime, I direct that status quo be maintained in that no execution shall issue prior to taxation of costs and extraction of the decree in accordance with the law.
Dated and delivered at Mombasa this 19th day of November 2019.
P.J.O. OTIENO
JUDGE