[2009] KEHC 3622 (KLR)
The court found that no interlocutory judgment had been entered on record and that the defendant's advocate acted improperly by issuing a letter threatening execution based on a non-existent judgment. The court held that the advocate's conduct was not in good faith and referred the matter to the Advocates Complaints...
Source-derived case information.
- Citation
- [2009] KEHC 3622 (KLR)
- Parties
- Plaintiff: Express Automobile (K) Ltd; Defendant: Kenya Farmers Association Ltd; Defendant: Lifewood Auctioneers Ltd
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 13 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Judgment and Referral to Advocates Complaints Commission
- Outcome
- Matter referred to Advocates Complaints Commission; proceedings stood over generally.
- Legal Topics
- Interlocutory Judgment, Distress for Rent, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Express Automobile (K) Ltd
Plaintiff
Kenya Farmers Association Ltd
Defendant
Lifewood Auctioneers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Judgment and Referral to Advocates Complaints Commission
Legal Issues
- 1 Whether an interlocutory judgment had been properly entered and was on record.
- 2 Whether the advocate's conduct in issuing a letter threatening execution was proper in the absence of a valid interlocutory judgment.
- 3 Whether the matter should be referred to the Advocates Complaints Commission for investigation.
Ratio Decidendi
The court found that no interlocutory judgment had been entered on record and that the defendant's advocate acted improperly by issuing a letter threatening execution based on a non-existent judgment. The court held that the advocate's conduct was not in good faith and referred the matter to the Advocates Complaints Commission for investigation. The court further ordered that the matter be stood over generally pending the outcome of the Commission's report and any constitutional reference.
Court Disposition
Matter referred to Advocates Complaints Commission; proceedings stood over generally.
Orders
- The matter is referred to the Advocates Complaints Commission for investigation of the advocate's conduct.
- The proceedings are stood over generally pending the report from the Advocates Complaints Commission and the constitutional reference.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Civil Case 13 of 2009
EXPRESS AUTOMOBILE (K) LTD ……………………………PLAINTIFF
VERSUS
KENYA FARMERS ASSOCIATION LTD
LIFEWOOD AUCTIONEERS LTD ………………………… DEFENDANT
RULING
I: Background
1. This suit was filed on 18th February, 2009 touching on distress of rent. A subsequent application for an injunction was not granted.
2. The defendant thereafter purports to apply an interlocutory judgment. This interlocutory judgment application request was not on the file nor did the Deputy Registrar of the High Court actually endorse the file on this request.
3. The advocate wrote a letter to the new advocate for the Plaintiff and prayed that within ten (10) days they will indeed execute the judgment of the court.
4. The fact remains that no such interlocutory judgment was on record.
II: Explanation by advocate
5. The advocate for the defendant claimed that he had sent another advocate to file to execute the same. He was under the impression that interlocutory judgment had been entered and recorded.
III: Opinion
6. The advocate did not extract the decree on the interlocutory judgment. That after a decree is extracted, then a notice of ten (10) days be issued on intention to execute.
7. I do not find that the conduct of the advocate in issuing such letter was done in good faith.
8. I hereby hold that this matter be referred to the Advocates Complaints Commission and thereby investigate further the advocate of issuing purported orders that did not exist on the court file.
DATED this 13th day of May, 2009 at KERICHO
M. ANG’AWA
JUDGE
Advocates
Plaintiff/applicant – present in person
C.P. Nyamwange advocate from the firm of M/S Masese & Nyamwange
advocate for the defendants/respondents – present
Court as before
Application 8. 5.09 is pending.
Applicant in person the matter be stayed until the Petition is heard.
Mr. Nyamwage – The application be stood over generally. The issues raised in the petition you should not file.
On mistake belief that there was interlocutory judgment we will not take any action of HCC. 13/09.
M.A. ANG’AWA
JUDGE
COURT– This matter stood over generally pending report from the advocate complaints commission and the constitution reference.
M.A. ANG’AWA
JUDGE
13. 5.09