[2000] KECA 55 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF KENYA

AT NAIROBI

CIVIL APPEAL 249 OF 1999

MINT HOLDINGS LTD.....…………...…....................1ST APPELLANT

SAMSON N. KEENGU......………………..................2ND APPELLANT

AND

TRUST BANK LTD................................…………….....RESPONDENT

(Appeal from the Ruling and orders of the High Court of Kenya at Nairobi

(Hon. Mr. Justice Tom Mbaluto) delivered on 3rd June, 1999

in

H.C.C.C. NO. 182 OF 1999)

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JUDGMENT OF THE COURT

On 18th February, 1999 the appellants the respondent (plaintiff in the superior court) filed a suit against the respondent (the first defendant in the superior court) and two others claiming certain reliefs. There was no liquidated claim in the reliefs sought. Having filed the suit the appellants applied for an interim injunction to restrain the respondent from selling their property known as LR No.10261/2 situate in Nairobi.

The respondent appointed M/s Ndungu Njoroge & Kwach as its advocates who duly lodged in the superior court a notice of appointment of advocates and served a copy thereof on the appellants' advocates. That was on 26th February, 1999. The notice of appointment of advocates quite clearly points out that the advocates were appointed to act for the respondent in the suit itself.

Despite the fact that the appellants' advocates were aware of the said notice of appointment they proceeded to serve the summons in the suit on the respondent itself on 9th March, 1999.

The respondent's statutory manager, Michael Muhindi, who was served with the summons did not forward the same to the respondent's advocates. He said that he did not do so as the matter was in court and that the advocates of the respondent had the conduct of the defence.

Whatever Mr. Muhindi may have felt, it is quite obvious that the appellants' advocates were bound to serve the summons and copy plaint on the advocates on record. Apart from what order III rule 8 as read with order III rule 3 of the Civil Procedure Rules says, it is a matter of common sense that once an advocate has been appointed to act for a party and he has taken the trouble to lodge a notice of appointment of advocates, service of any process ought to be made on that advocate.

The prayers sought by the appellants in their plaint do not entitle them to an interlocutory judgment in any event. As pointed out there was no liquidated demand. Judgment could only have been entered upon a formal proof. The entry of such interlocutory judgment was irregular as Order IXA of the Civil Procedure Rules does not cater for entering of an interlocutory judgment when the nature of reliefs sought requires formal proof.

The respondent quite correctly sought to set aside the ex-parte interlocutory judgment entered against it. The learned Judge exercised his undoubted discretion to set aside a judgment irregularly obtained.

The appellants not being satisfied with the learned Judge's ruling have appealed against it. Mr. Ogoti who appeared for the appellants conceded eventually, and in our view quite properly, that it was wrong on part of his firm to serve the summons on the party when the party had an advocate on record in the suit. He also conceded, quite properly, that the entry of interlocutory judgment, in the face of the nature of reliefs sought, was irregular.

We see no merit in this appeal. We cannot fault the learned Judge in having set aside the ex-parte interlocutory judgment. This appeal is dismissed with costs.

Dated and delivered at Nairobi this 19th day of September, 2000.

R.S.C. OMOLO

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JUDGE OF APPEAL

A.B. SHAH

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JUDGE OF APPEAL

E. O'KUBASU

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JUDGE OF APPEAL

I certify that this isa true copy of the original.

DEPUTY REGISTRAR.