[2009] KEHC 1123 (KLR)
The court found that the application dated 17th December, 2007 was not properly before the court because it was not filed by the recognized advocate on record, K.H. Osmond, who expressly denied knowledge of the application and disclaimed any involvement. The court held that allowing such an application to stand...
Source-derived case information.
- Citation
- [2009] KEHC 1123 (KLR)
- Parties
- Plaintiff: Pan Africa Bank Limited; Defendant: James Njagi Njiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2738 of 1992
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Judgment and Stay Execution
- Outcome
- Application expunged as improperly filed; not considered on merits.
- Judges
- A Ali-Aroni
- Legal Topics
- Setting Aside Judgment, Stay of Execution, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan Africa Bank Limited
Plaintiff
James Njagi Njiru
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Judgment and Stay Execution
Legal Issues
- 1 Whether the application filed on 17th December, 2007 was properly before the court given questions about the advocate's authority.
- 2 Whether documents filed by a person purporting to be K.H. Osmond should be expunged from the court record.
Ratio Decidendi
The court found that the application dated 17th December, 2007 was not properly before the court because it was not filed by the recognized advocate on record, K.H. Osmond, who expressly denied knowledge of the application and disclaimed any involvement. The court held that allowing such an application to stand would amount to condoning an illegality and an abuse of the court process. Consequently, the court exercised its inherent jurisdiction to expunge the application and any related documents from the court record, as they were filed by a person without authority to act as advocate for the defendant at the material time.
Court Disposition
Application expunged as improperly filed; not considered on merits.
Orders
- The application dated 17th December, 2007 purportedly filed by K.H. Osmond is expunged from the court record.
- The second application dated 17th December, 2008 purportedly filed by K.H. Osmond is also expunged from the court record.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Case 2738 of 1992
PAN AFRICA BANK LIMITED....................PLAINTIFF/RESPONDENT
VERSUS
JAMES NJAGI NJIRU..................................DEFENDANT/APPLICANT
RULING
Before me is an application by way of Notice of Motion brought pursuant to S. 3A of the Civil Procedure Act, order IXA Rule 10 & 11 Order XXI Rule 22 of the Civil Procedure Rules. The application is supported by the grounds on the face of the application and the affidavit of the Defendant dated 17th December, 2007.
The application is not opposed as no grounds of opposition or Replying Affidavit were filed.
The application was purportedly filed by K.H. Osmond & Co. Advocates. It is noteworthy that the current Advocates came on record on 11th September, 2009 yet the application was filed on 17th November, 2007, when K.H. Osmond was still on record then, however the 15th of April, 2009 in a letter addressed to counsel on re cord for the respondent K.H. Osmond stated in part:-
“... I am amazed to read the contents of your letter. Mr. Njiru removed the file several years ago and I am compelled to know who is masquerading and filing two applications on 17th December, 2007 in my name.
I know absolutely nothing about these and would you please be kind enough to send me copies and also to identify the advocate concerned who is masquerading as myself.”
As stated above the Plaintiff did not respond to the application but in a letter dated 14th May, 2009 addressed to K. H. Osmond and copied to the Registrar, the Plaintiff/Respondent’s counsel not only brought to the court’s attention the fact that there was a person signing and filing and holding out as K.H. Osmond, the counsel also asked the court to expunge the documents from the court filed. I note that the said advocate did not make a formal application at the same time. The above letter from K. H. Osmond on the court file remains unchallenged. The question that begs for an answer is whether in the absence of the Plaintiff/Respondent, the Court should give a blind eye to this illegality? I think not.
The recognized agent as at 17th December, 2007 was K.H. Osmond and he did not file the current application. It therefore follows that the application purportedly filed by K.H. Osmond is not properly before the court.
In the circumstances therefore I expunge the same and the second application also dated 17th December, 2008 purportedly filed by K.H. Osmond.
Dated and delivered at Nairobi this 4th day of November, 2009.
ALI- ARONI
JUDGE