[2003] KEHC 735 (KLR)
The court held that once a party is represented by an advocate, any subsequent pleadings filed by the party in person are not properly on record unless a notice of intention to act in person is first filed, as required by Order III Rule 9 (1) of the Civil Procedure Rules. Since the defendant was already represented...
Source-derived case information.
- Citation
- [2003] KEHC 735 (KLR)
- Parties
- Plaintiff: Kenya Commercial Bank Ltd; Defendant: Samuel Gitau Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1125 of 2002
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application to Strike Out Pleadings
- Outcome
- Application allowed in part with costs to the plaintiff.
- Legal Topics
- Striking Out Pleadings, Abuse of Court Process, Representation by Advocate, Notice of Intention to Act in Person
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Ltd
Plaintiff
Samuel Gitau Kimani
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application to Strike Out Pleadings
Legal Issues
- 1 Whether the memorandum of appearance and defence filed by the defendant in person are properly on record when the defendant is already represented by an advocate.
- 2 Whether the second set of pleadings filed by the defendant in person constitute an abuse of the court process.
Ratio Decidendi
The court held that once a party is represented by an advocate, any subsequent pleadings filed by the party in person are not properly on record unless a notice of intention to act in person is first filed, as required by Order III Rule 9 (1) of the Civil Procedure Rules. Since the defendant was already represented by counsel, the memorandum of appearance and defence filed by him in person without the requisite notice were irregular and constituted an abuse of the court process. The court therefore struck out the memorandum of appearance and defence filed by the defendant in person, allowing the plaintiff's application in part.
Court Disposition
Application allowed in part with costs to the plaintiff.
Orders
- The memorandum of appearance and defence filed by the defendant in person on 11th November, 2002 are struck out as not properly on record.
- Costs of the application awarded to the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO 1125 OF 2002
KENYA COMMERCIAL BANK LTD ………….………… PLAINTIFF
VERSUS
SAMUEL GITAU KIMANI …………………...…………. DEFENDANT
RULING
Before me is an application by way of summons in chambers under the provisions of Order VI Rule 13 (1) (d) of the Civil Procedure Rules for an order that the memorandum of appearance dated 11th November, 2002 and the defence dated 18th November, 2002 be struck out and/or expunged from the record because:-
1. The de fendant has filed a memorandum of appearance on 4 th November, 2002 as well as a defence on 11 th November, 2002
2. The second set of pleadings are therefore an abuse of the court process and are an attempt to substitute pleadings unprocedurally.
On 4th November, 2002 M/s Gitau Kariuki & Co Advocates entered appearance for the defendant but surprisingly, the defendant in person also entered appearance on 11th November, 2002 and filed a defence on the same day. Both the appearance and defence are dated 11th November, 2002. Another defence was filed by Gitau Kariuki & Company Advocates for the defendant on 20th November, 2002. That is what necessitated the present application.
Order III Rule 9 (1) of the Civil Procedure Rules (The Rules), provides that where a party after having sued or defended by an advocate intends to act in person in the cause or matter, he shall give a notice stating his intention to act in person.As the memorandum of appearance and the defence both dated and filed on 11th November, 2002, were filed after the memorandum of appearance filed by counsel on behalf of the defendant on 4th November, 2002, and without first filing a notice of intention to act in person, the memorandum of appearance and the defence filed by the defendant in person are not properly on record and we cannot have both sets on record. As the defendant is represented by counsel, what the defendant filed in person must be removed from the record.
The memorandum of appearance and defence, both filed by the defendant in person on 11th November, 2002, are struck out as they are not properly on record.
The application dated 14th April, 2003 is therefore allowed in part with costs to the Plaintiff.
Delivered at Nairobi this 22nd day of May, 2003.
S. C. ONDEYO
JUDGE
22. 5.2003