[2008] KEHC 1008 (KLR)
The court found that the notice of change of advocates filed by Ambwere T.S. & Associates was not properly served upon the previous advocates, Madzayo Mrima & Co. Advocates, as required by Order III rule 6 of the Civil Procedure Rules. Consequently, Madzayo Mrima & Co. Advocates remained the advocates on record for...
Source-derived case information.
- Citation
- [2008] KEHC 1008 (KLR)
- Parties
- Plaintiff: Jimmy D. Kitao; Plaintiff: Price H. Uledi; Plaintiff: Albert J. Marafa; Plaintiff: Henry Farrar Mpingajira; Plaintiff: Joash I. Mcharo; Plaintiff: Sarah Nyamvula; Defendant: Rt. Rev. Bishop Julius R.K. Kalu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 173 of 2006
- Procedural Posture
- Civil Suit / Ruling on Dismissal for Want of Attendance
- Outcome
- suit dismissed for want of attendance with costs to the defendant
- Legal Topics
- Change of Advocates, Service of Process, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jimmy D. Kitao
Plaintiff
Price H. Uledi
Plaintiff
Albert J. Marafa
Plaintiff
Henry Farrar Mpingajira
Plaintiff
Joash I. Mcharo
Plaintiff
Sarah Nyamvula
Plaintiff
Rt. Rev. Bishop Julius R.K. Kalu
Defendant
Procedural Posture
Civil Suit / Ruling on Dismissal for Want of Attendance
Legal Issues
- 1 Whether the notice of change of advocates was properly served in accordance with the Civil Procedure Rules.
- 2 Whether the plaintiffs' advocates were properly on record at the time of hearing.
- 3 Whether the suit should be dismissed for want of attendance by the plaintiffs and their advocates.
Ratio Decidendi
The court found that the notice of change of advocates filed by Ambwere T.S. & Associates was not properly served upon the previous advocates, Madzayo Mrima & Co. Advocates, as required by Order III rule 6 of the Civil Procedure Rules. Consequently, Madzayo Mrima & Co. Advocates remained the advocates on record for the plaintiffs. The court was satisfied that the plaintiffs' advocates were duly served with a hearing notice but failed to attend court without explanation. Additionally, the required court adjournment fees had not been paid. In light of these circumstances, the court exercised its discretion to dismiss the suit for want of attendance, with costs awarded to the defendant.
Court Disposition
suit dismissed for want of attendance with costs to the defendant
Orders
- The suit H.C.C.C. No. 173 of 2006 is dismissed for want of attendance.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 173 of 2006
1. JIMMY D. KITAO
2. PRICE H. ULEDI
3. ALBERT J. MARAFA
4. HENRY FARRAR MPINGAJIRA (Suing on their own
On behalf of the other members of Anglican Church,Of Kisauni).
5. JOASH I. MCHARO
6. SARAH NYAMVULA(Suing on their own and on
behalf of all the Decendants of the ex-freed slaves
of Frere Town in Mombasa) …….........……...…………………...…PLAINTFFS
VERSUS
RT. REV. BISHOP JULIUS R.K. KALU (Suing in his
Personal capacity and as the Bishop of the Diocese
Of Mombasa, Anglican Church of Kenya)…. …………..…….DEFENDANTS
COURT RULING
I have perused the affidavit of service of Alfred Ouma and I am convinced that the firm of Madzayo Mrima & Co. Advocates was served a with Hearing Notice for today (02. 09. 2008). The aforesaid firm received the notice under protest but that did not entitle it leave to fail to appear in court. The firm of Ambwere T.S. & Associates had filed a notice of change of Advocates dated 10. 06. 2008. There is no evidence that the notice was served upon the firm of Madzayo Mrima & Co. Advocates. Had the notice been served, the firm of Madzayo Mrima & Co. Advocates would have noted and indicated that it had been removed from record when it was served with the hearing notice dated 14. 08. 08. Mr. Ndegwa and Mr. Wanyonyi have denied having been served with a notice of change of Advocates. The failure by the firm of Ambwere T.S. & Associates to serve the notice of change of advocate upon all the parties means that the firm of Madzayo Mrima & Co. Advocates are still on record as appearing for the plaintiffs. In other words the firm of Ambwere T.S. & Associates is yet to comply with the provision of order III rule 6 of the Civil Procedure Rules. Having come to the conclusion that the firm of Madzayo Mrima & Co. Advocates is validly on record for the plaintiffs, I must consider whether or not I should dismiss this suit for want of attendance. I have already stated that the aforesaid firm of Advocates was served with a hearing notice. There is no reason why the plaintiffs and their advocates are absent from court. There is also no explanation as to why the Court Adjournment Fees has not been paid so that even if the plaintiffs were present in court, they would not have been heard unless the Court Adjournment Fees has been paid. In the end I am convinced the suit H.C.C.C. No. 173 of 2006 should be dismissed which I hereby order for want of attendance with costs to the defendant.
Dated and delivered at Mombasa this 2nd day of September 2008.
J. K. SERGON
J U D G E