[2009] KEHC 1592 (KLR)
The court found that the advocate-client relationship had irretrievably broken down, justifying the grant of leave for the advocates to cease acting for the plaintiff. The professional undertaking given by the advocates on behalf of the plaintiff was not accepted by the defendant or their advocates and lacked...
Source-derived case information.
- Citation
- [2009] KEHC 1592 (KLR)
- Parties
- Plaintiff: Senar Platform FZCO; Defendant: CFC Stanbic Bank Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 475 of 2009
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Leave to Cease Acting and Discharge of Professional Undertaking
- Outcome
- Application allowed; both prayers granted.
- Legal Topics
- Leave to Cease Acting, Professional Undertaking, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Senar Platform FZCO
Plaintiff
CFC Stanbic Bank Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Leave to Cease Acting and Discharge of Professional Undertaking
Legal Issues
- 1 Whether the firm of Gatheru, Gathemia & Co. Advocates should be granted leave to cease acting for the plaintiff.
- 2 Whether the professional undertaking filed on 20/7/2009 should be discharged and expunged from the court record.
Ratio Decidendi
The court found that the advocate-client relationship had irretrievably broken down, justifying the grant of leave for the advocates to cease acting for the plaintiff. The professional undertaking given by the advocates on behalf of the plaintiff was not accepted by the defendant or their advocates and lacked consideration. As such, the undertaking was not binding and could be discharged. The court held that the defendant would have to seek security for costs directly from the plaintiff, as the undertaking was no longer operative. Both prayers sought in the application were therefore granted.
Court Disposition
Application allowed; both prayers granted.
Orders
- Leave is granted to the firm of Gatheru, Gathemia & Co. Advocates to cease acting for the plaintiff.
- The professional undertaking filed on 20/7/2009 by the plaintiff is hereby discharged and expunged from the court record.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 475 of 2009
SENAR PLATFORM FZCO ……………………..………….. PLAINTIFF
VERSUS
CFC STANBIC BANK LTD. …………………..………….. DEFENDANT
R U L I N G
Chamber Summons dated 1/10/2009 brought under Section 1A, 3A Civil Procedure Act and Order III Rule 12. The orders sought are that the firm of M/S Gatheru, Gathemia & Co. Advocates be granted leave forthwith to cease acting for the plaintiff in this suit.
And that professional undertaking filed and dated 20/7/2009 be discharged and expunged from the court record. The first prayer is not opposed. However, the second prayer is strongly opposed by the respondent who has not filed any documents in opposition but appeared in court by counsel, Mr. Ogunde. The reasons why the prayer is made is that client company which is resident in Dubai has failed to respond to the advocates via SMSes and e-mail adequately thus making it impossible for the counsel to deal with this case.
And there is bitter fallout between counsel and client. The defendant has not to-date accepted the terms of the professional undertaking. The same ought to be discharged and expunged from the record.
The application is supported by affidavit of Gatheru Gathemia advocate in the firm of Gatheru Gathemia & Co. Advocates. It is sworn that Advocate and client have disagreed and the advocates wishes to withdraw from conducting the suit. The undertaking offered to the firm of Walker Kontos Advocates was under the express instructions of the client plaintiff company.
The undertaking was given in defence of Chamber Summons dated 13/1/2009 seeking an order for security of costs under Order 25 Rules 1, 2, 4, 5 (1) and 6of Civil Procedure Code. The defendant was seeking for security in the sum of Kshs.12,414,174/=. The offer of undertaking was to act as a defence to avoid any security being ordered against the plaintiff in favour of defendant.
The advocate does not have authority and the undertaking does not have any consideration. In any case, the defendant or his advocates have not accepted the undertaking. They are still pursuing the application for security. It is my view that the defendant will have to seek security directly from plaintiff itself.
The orders therefore prayed under prayer (1)is granted. Leave is granted to withdraw. Prayer 2 is also granted.
“The professional undertaking filed on 20/7/2009 by the plaintiff is hereby discharged and expunged from the court record.”
Costs shall be in the cause.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 21st day of October 2009.
JOYCE N. KHAMINWA
JUDGE