[2015] KEHC 8086 (KLR)
The court determined that the issues raised in the originating summons, particularly regarding the enforcement of a professional undertaking and the circumstances of delay, could not be adequately resolved on affidavit evidence alone. Exercising its discretion under Order 37 Rule 19 of the Civil Procedure Rules, the...
Source-derived case information.
- Citation
- [2015] KEHC 8086 (KLR)
- Parties
- Plaintiff: Moses Muchoki, Charles Njenga t/a Muchoki, Kangata Njenga & Co. Advocates; Defendant: Juliet Theuri t/a J. M. Theuri & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 372 of 2014
- Procedural Posture
- Civil Suit / Ruling on Originating Summons; Direction to Proceed as If Commenced by Plaint
- Outcome
- Originating summons to proceed as if commenced by plaint; further affidavits permitted; costs in the cause.
- Judges
- DO Ogembo
- Legal Topics
- Professional Undertakings, Advocates Act Enforcement, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Muchoki, Charles Njenga t/a Muchoki, Kangata Njenga & Co. Advocates
Plaintiff
Juliet Theuri t/a J. M. Theuri & Co. Advocates
Defendant
Procedural Posture
Civil Suit / Ruling on Originating Summons; Direction to Proceed as If Commenced by Plaint
Legal Issues
- 1 Whether the court should enforce a professional undertaking given by one advocate to another through originating summons.
- 2 Whether the matter can be determined solely on affidavit evidence or requires further pleadings and directions under Order 37 Rule 19.
Ratio Decidendi
The court determined that the issues raised in the originating summons, particularly regarding the enforcement of a professional undertaking and the circumstances of delay, could not be adequately resolved on affidavit evidence alone. Exercising its discretion under Order 37 Rule 19 of the Civil Procedure Rules, the court directed that the proceedings continue as if commenced by plaint, allowing for further pleadings and evidence. This approach ensures that all factual disputes, especially those concerning the cause of delay and the effect of any verbal undertakings by third parties, are properly ventilated and adjudicated.
Court Disposition
Originating summons to proceed as if commenced by plaint; further affidavits permitted; costs in the cause.
Orders
- This cause of action shall continue as if it had been begun by filing a Plaint.
- The originating summons and affidavits filed shall stand as pleadings.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO. 372 OF 2014 (O.S.)
IN THE MATTER OF THE ADVOCATES ACT, CHAPTER 16 LAWS
OF KENYA
AND
IN THE MATTER OF ENFORCEMENT OF A PROFESSIONAL
UNDERTAKINGMOSES MUCHOKI,CHARLES NJENGA
T/A MUCHOKI, KANGATA NJENGA & CO. ADVS. ::::::::: PLAINTIFF
VERSUS
JULIET THEURI
T/A J. M. THEURI & CO. ADVS. ::::::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
I have carefully considered the Originating Summons filed in court on 27th August 2014. Although the Originating Summons is brought under Order 52 Rule 7 (1) (b) and (2) of the Civil Procedure Rules, I am inclined, having considered the said Originating Summons, to give direction under Order 37 Rule 19.
It is clear that the Originating Summon seeks to enforce the terms of undertaking given by one advocate to another. Yet, it is also clear that there are issues relating to time, and time being of essence, and issues relating to one bank official verbally undertaking that they would excuse the Defendant for any accrued interests on account of delay since delay was partly occasioned by the party now seeking to enforce the undertaking.
In my view, the Originating Summons cannot be determined only on the basis of affidavit evidence. Under Order 37 Rule 19 this court has the power to direct that these proceedings do continue as if the cause had began by filing a Plaint. In that regard, I make the following orders:-
This cause of action shall continue as if it had been began by filing a Plaint.
The originating summons and affidavits filed shall stand as pleadings.
The parties shall be at liberty to file additional affidavits within 10 days from the date hereof.
Costs shall be in the cause.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI
THIS 2ND DAY OF NOVEMBER 2015
E. K. O. OGOLA
JUDGE
PRESENT:
Mr. Adira holding brief for Njenga for thePlaintiff
No appearance for theDefendant
Teresia – Court Clerk