[2005] KEHC 2796 (KLR)
The court found that J. K. Birir and Company Advocates had not complied with the mandatory requirements of Order 3 rule 6 and 7 of the Civil Procedure Rules for coming on record for the defendants. There was no evidence in the court file of a notice of change of advocates having been filed or served. As such, the...
Source-derived case information.
- Citation
- [2005] KEHC 2796 (KLR)
- Parties
- Plaintiff: Uasin Gishu District Cooperative Auditor; Defendant: Naomi Wangoi Gutu; Defendant: Dorcas Njeri; Defendant: Mondo Muthiga; Defendant: Dorcas Mugure; Defendant: Daniel Kinyanjui Peter; Defendant: Moses Ndung’u Kiragu
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 155 of 1996
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Application
- Outcome
- Application struck out with costs to the plaintiff.
- Legal Topics
- Change of Advocates, Striking Out Applications, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uasin Gishu District Cooperative Auditor
Plaintiff
Naomi Wangoi Gutu
Defendant
Dorcas Njeri
Defendant
Mondo Muthiga
Defendant
Dorcas Mugure
Defendant
Daniel Kinyanjui Peter
Defendant
Moses Ndung’u Kiragu
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Application
Legal Issues
- 1 Whether J. K. Birir and Company Advocates were properly on record for the defendants as required by the Civil Procedure Rules.
- 2 Whether the application filed by J. K. Birir and Company Advocates should be struck out for want of compliance with Order 3 rule 6 and 7 of the Civil Procedure Rules.
- 3 Whether citing the wrong rule in the application is a curable defect under Order 50 rule 12 Civil Procedure Rules.
Ratio Decidendi
The court found that J. K. Birir and Company Advocates had not complied with the mandatory requirements of Order 3 rule 6 and 7 of the Civil Procedure Rules for coming on record for the defendants. There was no evidence in the court file of a notice of change of advocates having been filed or served. As such, the firm was not properly on record and could not act for the defendants or file any application on their behalf. Consequently, the application filed by them was incompetent and was struck out. The court further held that while citing the wrong rule is a curable defect under Order 50 rule 12, this did not affect the outcome since the advocates were not properly on record in the first...
Court Disposition
Application struck out with costs to the plaintiff.
Orders
- The Notice of Motion dated 21st April 2004 filed by Messrs. J. K. Birir and Company Advocates on behalf of the defendants is struck out.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL CASE NO. 155 OF 1996
UASIN GISHU DISTRICT COOPERATIVE AUDITOR …..…..........….. PLAINTIFF
-VERSUS
NAOMIWANGOI GUTU ………………….……...……………. 1ST DEFENDANT
DORCAS NJERI …………………….…………………………. 2ND DEFENDANT
MONDO MUTHIGA ………………………………....……….…. 3RD DEFENDANT
DORCAS MUGURE ………………………….…..….....…….…. 4TH DEFENDANT
DANIEL KINYANJUI PETER ……………....……....…..…….…. 5TH DEFENDANT
MOSES NDUNG’U KIRAGU …………….........………..…….…. 6TH DEFENDANT
RULING
Mr. Fundi for the plaintiff on 6th April 2005 raised objections to the application dated 21st April 2004. That the said application is incompetent as it was filed by J. K. Birir and Company Advocates who are not on record. They therefore cannot act for any party unless they properly come on record as required under Order 3 rule 6 and 7 of the Civil Procedure Rules. That rule does not give a defendant power to apply for dismissal of the suit. They should have cited rule 5.
Mr. Birir opposed the objections. He submitted that they filed notice of change of advocates on 15th February 2002 and served the same on Messrs. Birech and Company Advocates as well as the firm of Nyairo and Company Advocates. He stated that they were therefore properly on record. On the citation of the wrong rule of the Civil Procedure Rules, he submitted that the same can be cured under Order 50 rule 12 Civil Procedure Rules.
I have considered the submissions on both sides and perused the documents in the file. Though Mr. Birir argued that a notice of change of advocates was filed on 15th February 2002, there is no indication of the same in the file. According to the record the last application before 2002 was an application filed by Messrs. Nyairo and Company Advocates dated 21st August 2001. Then there is a letter dated 25th November 2002 from the same firm of advocates requesting for certified copy of the proceedings. That letter was responded to by the Deputy Registrar on 24th April 2003, informing the firm of advocates that typed copies of the proceedings were ready. Then what follows is the Notice of Motion dated 21st April 2004 filed by J. K. Birir and Company Advocates. There is no indication anywhere, including the typed proceedings that Messrs. Birir and Company Advocates had taken over conduct of the defendants’ case from Messrs. Birech and Company Advocates.
In those circumstances I find that Messrs. Birir and Company Advocates have not complied with the provisions of Order 3 rule 6 and 7 of the Civil Procedure Rules. Therefore they cannot act for any of the parties. They cannot purport to file an application for any of the parties. Consequently, I strike out the Notice of Motion dated 21st April 2004 filed by Messrs. J. K. Birir and Company Advocates on behalf of the defendants.
On the issue of citing the wrong provisions of law, that was a mistake. However in my view it is a curable mistake under Order 50 rule 12 Civil Procedure Rules. It would be different if the complaint was that he brought the application using the wrong procedure. I have however, already struck out the application as Messrs. J. K. Birir and Company Advocates are not properly on record on behalf of the defendants.
For the above reasons, I strike out the application by way of Notice of Motion dated 21st April 2004 and filed by Messrs. J. K. Birir and Company Advocates on behalf of the defendants, with costs to the plaintiffs.
Dated and Delivered at Eldoret this 11th Day of May 2005
George Dulu
Ag. Judge