[2004] KEHC 2191 (KLR)
The application was dismissed primarily because the applicant's advocates failed to comply with the mandatory requirements of Order 3 rule 9(a) of the Civil Procedure Rules when coming on record after judgment. This procedural defect rendered the application incompetent, null, and void. Additionally, the court found...
Source-derived case information.
- Citation
- [2004] KEHC 2191 (KLR)
- Parties
- Plaintiff: Hezron Tirimba Michieka; Defendant: Alfayo Omesa Omangi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Setting Aside Judgment
- Outcome
- application dismissed with costs
- Judges
- K Bauni
- Legal Topics
- Setting Aside Judgment, Stay of Execution, Change of Advocate, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Tirimba Michieka
Plaintiff
Alfayo Omesa Omangi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Setting Aside Judgment
Legal Issues
- 1 Whether the application to set aside judgment and stay execution is competent given the failure to comply with Order 3 rule 9(a) of the Civil Procedure Rules.
- 2 Whether the applicant is entitled to relief on the basis of mistake of counsel.
- 3 Whether the cited provisions of Order 21 rules 22 and 25 Civil Procedure Rules are applicable to the present application.
Ratio Decidendi
The application was dismissed primarily because the applicant's advocates failed to comply with the mandatory requirements of Order 3 rule 9(a) of the Civil Procedure Rules when coming on record after judgment. This procedural defect rendered the application incompetent, null, and void. Additionally, the court found that the provisions of Order 21 rules 22 and 25 Civil Procedure Rules, under which the application was brought, were irrelevant to the circumstances of the case. The applicant also failed to demonstrate diligence or that he had properly instructed his former advocates to file a defence. The court concluded that there was no merit in the application and declined to exercise its...
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution and setting aside judgment is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE NO.14 OF 2003
HEZRON TIRIMBA MICHIEKA …………………………PLAINTIFF/RESPONDENT
VERSUS
ALFAYO OMESA OMANGI …………………………….. DEFENDANT/APPLICANT
RULING:
Defendant/Applicant seeks orders that there be stay of execution of court orders dismissing the suit.
The defendant when served with summons filed a memorandum of appearance through the firm of M/S KEROSI ONDIEK & CO. ADVOCATE. He however never filed a defence. On 23/9/2003 matter proceeded for formal proof and judgment entered on 25/9/2003. It is that judgment he now seeks to be set aside.
It was submitted by Mr. Ondika who argued the application that the mistake was made by the defendant’s former advocate as he did not file a defence. He therefore submitted that mistake of a counsel should not be vested on an innocent litigant.
Application was opposed. It was submitted that M/s Nyamwange and Co. Advocates floated order 3 rule 9 CPR in that they did not make an application to court to be allowed to come in record instead of M/s Kerosi Ondieki & Co. Advocates and thus they are not properly on record. Counsel for applicant clearly avoided to reply to that point.
However it is clear that M/s Nyamwange & Co. Advocates failed to comply with order 3 rule 9(a) CPR. That rule is clear and is mandatory. Judgment had already been entered when they purported to come on record.
They needed to make an application serving the other counsel to be allowed to come on record. Failure to do so makes this application in incompetent, null and void and in that ground alone I would dismiss it.
Again issue was raised on the provisions of order 21 rule 22 & 25 CPR under which the application is made. I concur with counsel for the respondent that the two rules are irrelevant to this application. Order 21 rule 22 CPR talks of a situation where a decree is sent from one court to another for execution. Then a party can make an application before the court where the decree had been sent for a temporary stay for the affected party to get time to go back to the court which sent the decree. This was not the case in this case.
O.21 rule 25 CPR talks of a situation where there is a completely different suit pending before a court whose outcome perhaps would affect the case in where the decree is sought to be executed. There is no other case pending whose results are being awaited for.
As for s.34 & 35 of the Advocates Act there is clearly an indication of the party who drew the application. In any case s.35 only states whoever floats the two section shall be guilty of an offence. It does not say the documents drawn be rejected. That is left at the discretion of the court.
Indeed it is trite law that a party should not be made to suffer for mistakes of his counsel. Applicant however does not say if he instructed M/s Kerosi & Co. Advocates to file a defence or not. In his affidavit he only say he expected them to file a defence. However when M/s Kerosi Ondieki and Co. Advocates were served with a hearing notice for taxation they endorsed the notice and stated they were receiving it under protest as they had no instructions for the client.
I don’t think the defendant was diligent in his matters to convince the court to exercise its discretion in his favour. If indeed he had instructed the counsel and they refused to act he can get recourse elsewhere.
All in all I find application has no merit. The same is dismissed with costs.
Dated and delivered this 23rd February 2004.
KABURU BAUNI
JUDGE
23/2/04
Mr. Ondika for the applicant
Mr. Oguttu for respondent
KABURU BAUNI
JUDGE