[2001] KEHC 566 (KLR)
The court held that the judgment entered after the hearing of the plaintiff's application for summary judgment constituted a decree as defined under Section 2 of the Civil Procedure Act. Therefore, Order III Rule 9A of the Civil Procedure Rules applied, requiring the defendant's new advocate to obtain leave of the...
Source-derived case information.
- Citation
- [2001] KEHC 566 (KLR)
- Parties
- Plaintiff: United Finance Co. Ltd.; Defendant: Matiko Agoye Akedi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 246 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; defendant's motion struck out with costs
- Legal Topics
- Change of Advocates, Summary Judgment, Leave of Court, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
United Finance Co. Ltd.
Plaintiff
Matiko Agoye Akedi
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an advocate can come on record for a judgment debtor after judgment without leave of the court as required by Order III Rule 9A of the Civil Procedure Rules.
- 2 Whether the application to set aside judgment filed by the new advocate without leave is competent.
Ratio Decidendi
The court held that the judgment entered after the hearing of the plaintiff's application for summary judgment constituted a decree as defined under Section 2 of the Civil Procedure Act. Therefore, Order III Rule 9A of the Civil Procedure Rules applied, requiring the defendant's new advocate to obtain leave of the court before coming on record. Since no such leave was sought or obtained, the notice of change of advocates and the subsequent application to set aside the judgment were filed irregularly. As a result, the preliminary objection was upheld and the defendant's motion to set aside the order was struck out with costs.
Court Disposition
preliminary objection upheld; defendant's motion struck out with costs
Orders
- The preliminary objection is upheld.
- The defendant's motion to set aside the order made on 19.10.2000 is struck out with costs.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 246 OF 1999
UNITED FINANCE CO. LTD. ………………………….... PLAINTIFF
VERSUS
MATIKO AGOYE AKEDI …………………………..…. DEFENDANT
RULING
When this matter came up for hearing before me on 18. 6.2001 learned counsel for the plaintiff/respondent, who also is the decree holder, raised a preliminary objection. He submitted that learned counsel for the judgment debtor had come on the record irregularly in that he had not sought leave of the court before filing his notice of change of advocates as required by O. III Rule 9A of the Civil Procedure Rues.
The record of this matter reveals that the said advocate filed his notice of change of advocates on 22. 11. 2000. The notice is dated 20. 11. 2000. On the same day he filed a notice of motion application to set aside a judgment which had been entered against the defendant/applicant following a summary judgment application. There is no evidence to show that prior to filing the notice of change of advocates and the application to set aside the judgment, the defendant’s advocate had obtained the sanction of the court.
Rule 9A of O. III of the Civil Procedure Rules provides:-
“When there is change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgement and decree have been passed, such change or intention to act in person shall not be effected without an order of the court upon an application with notice to the advocate on record.”
Mr Owour for the plaintiff/respondent submitted that for the purposes of the Rule, there was no difference between a judgment and a decree and that once a judgment has been entered, the Rule applied. Consequently, he further argued because the application before court had been filed by an advocate who was not properly before court, it was incompetent and ought to be struck out.
In response, Mr. Nyabundi submitted that there was a difference between a judgment and a decree. If the intention of the framers of the amended Rule 9A intended to restrict an application for leave to the stage where judgment only had been entered and before any decree had been issued, they would have stated so. He further stated that the Rules Committee was not being superfluous by using the word decree. According to him a decree had to be drawn before Rule 9A came into play.
The word ‘decree’ is defined in Section 2 of the Civil Procedure Act as:-
“the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may either be preliminary of final; it includes the striking out of a plaint but does not include “any order of dismissal for default.”
The judgment entered herein was not an order of dismissal for default. It was entered after the hearing of the plaintiff/applicant’s application for summary judgment. The judgment is therefore a decree within the meaning of Section 2 of the Civil Procedure Act. Given that position, it was necessary having regard to the provisions of Rule 9A for the advocates of the defendant/judgment debtor to obtain leave of the court before coming on the record.
For all those reasons, the preliminary point raised by the advocates for the plaintiff/respondent is upheld and the defendant’s motion to set aside the order made on 19. 10. 2000 struck out with costs.
Dated at Nairobi this 4th July, day of July, 2001.
T. MBALUTO
JUDGE