[2007] KEHC 3292 (KLR)
The court held that the purpose of Order III rule 9A is to ensure that the previous advocate is notified of any application to take over the conduct of a matter after judgment, thereby protecting the interests of advocates who have previously acted in the case. The court found that even though the defendant had been...
Source-derived case information.
- Citation
- [2007] KEHC 3292 (KLR)
- Parties
- Plaintiff: Kenya Commercial Bank Ltd; Defendant: Peter Thiongo Muchiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2976 of 1996
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to Come on Record Post Judgment
- Outcome
- Application allowed; leave granted for Waithaka Wachira & Company Advocates to act for the defendant.
- Judges
- MM Kasango
- Legal Topics
- Change of Advocate, Post Judgment Procedure, Notice of Motion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Ltd
Plaintiff
Peter Thiongo Muchiri
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to Come on Record Post Judgment
Legal Issues
- 1 Whether the firm of Waithaka Wachira & Company Advocates should be granted leave to come on record for the defendant after judgment has been entered.
- 2 Whether the application to come on record is properly before the court given the defendant had previously obtained leave to act in person.
Ratio Decidendi
The court held that the purpose of Order III rule 9A is to ensure that the previous advocate is notified of any application to take over the conduct of a matter after judgment, thereby protecting the interests of advocates who have previously acted in the case. The court found that even though the defendant had been granted leave to act in person, the application by Waithaka Wachira & Company Advocates to come on record was properly made and should be allowed. The court further noted that the plaintiff's opposition was misplaced, as the plaintiff does not necessarily need to be served or have a say in who represents the defendant post-judgment. Accordingly, the court granted leave to...
Court Disposition
Application allowed; leave granted for Waithaka Wachira & Company Advocates to act for the defendant.
Orders
- The firm of Waithaka Wachira & Company Advocates is granted leave to act for the defendant henceforth.
- There shall be no order as to costs in respect of the Notice of Motion dated 7th November 2006.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Suit 2976 of 1996
KENYA COMMERCIAL BANK LTD…............................……………………..PLAINTFF
VERSUS
PETER THIONGO MUCHIRI…............................……………………….…DEFENDANT
RULING
A Notice of Motion dated 7th of November 2006 is brought by the firm of Advocates called Waithaka Wachira & Company advocates who desire to come on record on behalf of the Defendant. Judgment in this matter was entered on 9th of March 2005 and hence why the firm seeks leave of this court to come on record. The application seeks to take over the conduct of the defendant case from the firm of M’bijiwe Mugo & Co. Advocates. It was opposed by the plaintiffs counsel on the basis that the defendant obtained leave to act in person and that therefore there is no need to seek leave to take over the conduct of this matter from Mbijiwe & Company Advocates. I am able to confirm that as at the 10th of September 2004 the firm of Mbijiwe Mugo filed a Notice to act for the defendant. When this matter came up for hearing on 23rd of November 2004 the defendant informed the court that his advocate had failed to come to court to conduct the hearing and requested for leave to act in person. The court granted him that leave. It does seem that on the 8th of July 2005 the firm of Kaai Mugambi came on record when they filed a Notice of change of Advocate from Mbijiwe Mugo. What the plaintiff opposes is that the present application seeks to take over the action of this matter from Mbijiwe when in fact it was the defendant who was acting in person. In the Plaintiffs view therefore the present application is misplaced and they do seek to have it dismissed.
What the court finds strange is that the Plaintiff in an application such as this one does not necessary have to be served and since they do not have to be necessarily served their opinion on who should act for the defendant is neither here nor there. I will therefore proceed to ignore submissions that were made on behalf of the plaintiff in respect of the present application. The purpose of Order III rule 9 A is to ensure that the previous advocate who was on record is made aware of the application to take over the conduct of the matter. I believe the mischief for which this rule was made was to ensure that after judgment, parties would not at will change Advocates perhaps at times to the detriment of those advocates. Having in mind that mischief I am of the view that the present application will be allowed even if of late the defendant had been given leave to act in person. The court therefore does hereby grant the firm of Waithaka Wachira & Company Advocates leave to act for the defendant henceforth. In respect of the Notice of Motion dated 7th of November 2006 there shall be no order as to costs.
Dated and delivered on 29th day of January 2007.
MARY KASANGO
JUDGE