[2011] KEHC 3880 (KLR)
The court found that the second defence filed by the previous firm of advocates after a notice of change of advocates had been filed was superfluous and constituted an abuse of the court process. The court held that only the first defence, filed by the firm properly on record, should remain. The second defence was...
Source-derived case information.
- Citation
- [2011] KEHC 3880 (KLR)
- Parties
- Plaintiff: Marnier Pierre Andre Roger; Defendant: Alex Muthami Ndungi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 302 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence
- Outcome
- Second defence struck out as abuse of process; costs awarded to applicant.
- Legal Topics
- Change of Advocates, Striking Out Pleadings, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marnier Pierre Andre Roger
Plaintiff
Alex Muthami Ndungi
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the second defence filed by the previous firm of advocates after a notice of change had been filed is valid.
- 2 Whether the second defence constitutes an abuse of the court process.
Ratio Decidendi
The court found that the second defence filed by the previous firm of advocates after a notice of change of advocates had been filed was superfluous and constituted an abuse of the court process. The court held that only the first defence, filed by the firm properly on record, should remain. The second defence was struck out as it was filed without authority. The defendant was ordered to pay the costs of the application.
Court Disposition
Second defence struck out as abuse of process; costs awarded to applicant.
Orders
- The second defence filed by the previous firm of advocates is struck out.
- The first defence remains properly on record.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 302 0F 2008
MARNIER PIERRE ANDRE ROGER …………………………..PLAINTIFF
VERSUS
ALEX MUTHAMI NDUNGI …………………………………..DEFENDANT
R U L I N G
The Defendant entered appearance on 10. 11. 2010 through the firm of M/s Charles Kioko, Munyithya & Co. Advocates.
On 21st the firm of Alando & Co. Advocates filed a Notice of Change of Advocates for the Defendants and also a defence on 25. 11. 2008.
On 26th November 2008 the previous firm filed another Defence. The second defence is an abuse of the court process. It is hereby struck out as it is superfluous and filed by a firm who had no authority to do so at the time unless the notice of change by Alando & Co. Advocates is challenged.
The first defence is properly on record and cannot be struck out in the circumstances,
The Defendant shall pay the cost of the application dated 27. 07. 2009.
Dated and delivered at Mombasa this 11thday of FEBRUARY 2011.
M. K. IBRAHIM
J U D G E