[2020] KEHC 3281 (KLR)
The court held that non-compliance with Order 9 Rule 9 of the Civil Procedure Rules should not be used by an opponent to defeat an application, as the rule is intended to protect advocates' fees, not to dictate representation. Striking out the motion on this ground would not resolve the dispute but merely delay...
Source-derived case information.
- Citation
- [2020] KEHC 3281 (KLR)
- Parties
- Applicant: Martin Tindi & Co. Advocates; Respondent: Bimbita Mgalla Dzumba & 46 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 197 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objections and Procedural Applications
- Outcome
- Preliminary objections dismissed; leave granted to respondent to file additional response.
- Judges
- CA Otieno
- Legal Topics
- Change of Advocate, Order 9 Rule 9, Amendment of Pleadings, Leave to Respond
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Tindi & Co. Advocates
Applicant
Bimbita Mgalla Dzumba & 46 Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections and Procedural Applications
Legal Issues
- 1 Whether non-compliance with Order 9 Rule 9 of the Civil Procedure Rules warrants striking out the motion.
- 2 Whether amendment of the motion without leave justifies striking out the application.
Ratio Decidendi
The court held that non-compliance with Order 9 Rule 9 of the Civil Procedure Rules should not be used by an opponent to defeat an application, as the rule is intended to protect advocates' fees, not to dictate representation. Striking out the motion on this ground would not resolve the dispute but merely delay proceedings. Regarding the amendment without leave, the court found that while the respondent's concern about lack of opportunity to respond was valid, the appropriate remedy was to grant leave to file additional responses, not to strike out the motion. The court thus declined to strike out the motion and instead granted the respondent leave to respond within seven days.
Court Disposition
Preliminary objections dismissed; leave granted to respondent to file additional response.
Orders
- The motion is not struck out for non-compliance with Order 9 Rule 9.
- The respondent is granted leave to file any additional response to the amended motion within 7 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. APPLICATION NO. 197 OF 2018
MARTIN TINDI & CO. ADVOCATES.............................................APPLICANT
VERSUS
BIMBITA MGALLA DZUMBA & 46 OTHERS.......................RESPONDENTS
R U L I N G
1. To this court Order 9 Rule 9 was intended to shied advocatesfrom clients keen avoid payment of legal fees to their advocates after enjoyed legal services by such advocates by changing advocates or seeking to act in person but not as a tool to be used by an opponent in litigation to dictate to the adversary the choice of this advocates. SeeDoshi iron mongers -vs- KRA & Another [2019] eKLR. I take the view that it cannot be a tool to defeat an application at the instance of an opponent.
2. Today, if I accede to Mr Tindi’s request and struck out the motion on account of future to comply with order 9 Rule 9, I would have done nothing to resolve the dispute because the applicant will hereby came back tomorrow with an appropriate prayer as an addition to those currently in the application. That would run affront the dictate that the litigation be conducted in proportionate and cost effective manner. For that reason I decline to strike out on the basis of non-compliance with Order Rule 9 Civil Procedure Rule.
4. On the second attack that the motion was amended without leave, I do take it that the prejudice that confronts the respondent in that it has not had the time to respond to the amended motion it having been filed subsequent to the responses by the Respondent. That is indeed a valid concern and invoking the right to a fair trial. It is, however, not a basis to invite the draconian remedy to strike out. The same is capable of remedy by granting leave to the respondent to file any additional responses to the amended motion.
6. I thus decline to strike out the motion but grant leave to Mr. Tindi to file any additional response to the motion within 7 days from today.
7. The motion shall be canvassed by way of written submissions to be filled as follows: -
i. By the Applicant within 7 days after Mr. Tindi shall have filed
and served any Response to the amended motion.
ii. By the Respondent within 7 days after service by the applicant.
iii. Hearing on 29/9/2020.
Dated, signed and delivered at Mombasathis31stday ofAugust 2020.
P.J.O. OTIENO
JUDGE