[2012] KEHC 1105 (KLR)
The court found that M/s Khaminwa & Khaminwa Advocates, having been replaced by M/s A. S. Kuloba & Wangila Advocates, had no authority to file the Notice of Motion dated 15th August 2012. Consequently, the application for stay of execution was incompetent. Furthermore, the plaintiff failed to carry out the...
Source-derived case information.
- Citation
- [2012] KEHC 1105 (KLR)
- Parties
- Plaintiff: Irene Nechesa Shimwenyi; Plaintiff: Meshack Shimwenyi (suing as the legal representative of the estate of Mackline Khabakali); Defendant: Gichuki Gitihi; Defendant: Dr. George Godia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1078 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Status of Suit
- Outcome
- Suit dismissed for non-compliance with court order; application for stay of execution struck out as incompetent; file closed with costs to the defendants.
- Judges
- DA Onyancha
- Legal Topics
- Amendment of Pleadings, Authority of Advocate, Dismissal of Suit, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Nechesa Shimwenyi
Plaintiff
Meshack Shimwenyi (suing as the legal representative of the estate of Mackline Khabakali)
Plaintiff
Gichuki Gitihi
Defendant
Dr. George Godia
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Status of Suit
Legal Issues
- 1 Whether the application for stay of execution filed by M/s Khaminwa & Khaminwa Advocates was competent.
- 2 Whether the plaintiff complied with the court's order to amend pleadings within 30 days.
- 3 Whether the suit stood dismissed after failure to comply with the court's order.
Ratio Decidendi
The court found that M/s Khaminwa & Khaminwa Advocates, having been replaced by M/s A. S. Kuloba & Wangila Advocates, had no authority to file the Notice of Motion dated 15th August 2012. Consequently, the application for stay of execution was incompetent. Furthermore, the plaintiff failed to carry out the amendments ordered by the court within the stipulated 30 days, a fact admitted by the plaintiff's representative. As a result, the suit stood dismissed automatically after the expiration of the 30-day period as per the prior court order. There being no subsisting suit, the court had no jurisdiction to entertain the application, and the file was ordered closed with costs to the defendants.
Court Disposition
Suit dismissed for non-compliance with court order; application for stay of execution struck out as incompetent; file closed with costs to the defendants.
Orders
- The suit stands dismissed as ordered by Sitati, J after expiration of 30 days from 3rd December, 2011.
- The Notice of Motion dated 15th August 2012 is struck out as incompetent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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IRENE NECHESA SHIMWENYI
MESHACK SHIMWENYIsuing as the legal representatives
of the estate ofMACKLINE KHABAKALI. ................. PLAINTIFFS
VERSUS
GICHUKI GITIHI. .................................................... 1ST DEFENDANT
DR. GEORGE GODIA. ......................................... 2ND DEFENDANT
R U L I N G
This court, by a ruling made by Sitati, J dated 3rd December, 2011, allowed the Applicant/Plaintiff therein to make certain amendments and carry out certain procedures within 30 days. The court expressly stipulated that if such amendments and processes were not carried out as ordered, the whole suit would stand dismissed.
Furthermore, on 4th October, 2010 the firm of advocates, M/s Khaminwa & Khaminwa Advocates who before then were acting for the plaintiff, were replaced by a Notice of Change of Advocates filed by M/s A. S. Kuloba & Wangila Advocates, who thereafter took over the conduct of the suit.
What the above events demonstrate, is that by the date M/s Khaminwa & Khaminwa Advocates filed the application by way of a Notice of Motion dated 15th August 2012 (or is it 10th August, 2012), seeking stay of execution, they were not the advocates on the suit record and had therefore no authority in law to file the Notice of Motion aforesaid. That, in my view, rendered the said application incompetent for all purposes.
On the other hand, the suit as ordered by Sitati, J in her ruling dated 3rd December, 2011, was to stand dismissed after 30 days of the said order, if the plaintiff did not carry out the ordered or authorized amendments within the said period. The claim and submissions by the Defendant that the Plaintiff failed to carry out the authorized amendments, was not denied by the plaintiff. Indeed the allegations were admitted by Mr. Mutisya holding M/s Khaminwa’s brief. In the circumstances, the court declares that suit stood dismissed as ordered by Sitati J, at the expiration of 30 days thereafter.
As also submitted by the Defendant, there was no existing suit under which the Plaintiff would purport to file the Notice of Motion application dated 15th August, 2012. This court entirely concurs with the position. This court, therefore, has no justiciable basis upon which it can presently visit the dismissed suit. The court accordingly orders the file closed with costs.
Dated and delivered this 9th day of November, 2012.
..................................................
D A ONYANCHA
JUDGE