The High Court in Nairobi on Thursday dismissed an application by lawyer Nelson Havi seeking to throw out a defamation suit filed against him by advocate Danstan Omari.
The court struck out Havi’s application and ordered him to pay costs, allowing Omari’s defamation case to proceed.
Havi had asked the court to strike out pleadings and proceedings in the matter, arguing that he had never instructed the firm of Osundwa & Company Advocates to act for him and that all steps taken by the firm on his behalf were invalid.
He also sought to have Omari’s defamation suit declared incompetent on the ground that no summons to enter appearance were extracted or served as required under the Civil Procedure Rules.
Havi further asked the court to strike out Omari’s request for interlocutory judgment and to set aside all proceedings conducted when the disputed law firm appeared for him.
Omari opposed the application and told the court that the defendant had actively participated in the defamation proceedings through counsel, including filing pleadings and engaging in correspondence.
Omari argued that any alleged failure relating to summons was, at most, a curable procedural defect and that Havi had waived any such objection by taking part in the case.
In her ruling, Justice Janet Mulwa found that the court record and the Case Tracking System showed that Osundwa & Company Advocates were on record for Havi at all material times.
The judge held that although Havi claimed he never instructed the firm, he placed no evidence before the court to support that allegation, including any protest letter to the firm, an affidavit from the firm, or testimony from the advocate concerned.
The court observed that it was highly unlikely that an advocate would enter appearance and file pleadings in a matter without instructions.
The judge further found that there was no evidence that a proper notice of change of advocates had been filed to replace Osundwa & Company Advocates with Havi & Company Advocates, as required by law.
The court emphasised that rules governing change of advocates exist to maintain order in civil proceedings and cannot be ignored.
On the issue of summons, the court noted that summons are meant to notify a defendant of a suit and give an opportunity to respond before adverse orders are issued.
However, the judge held that the application before the court was itself procedurally incompetent because it had been filed through a firm that was not properly on record.
As a result, the court declined to determine the substantive complaints raised by Havi on the alleged failure to issue or serve summons in the defamation suit.
The court consequently struck out NHavi’s application in its entirety and awarded costs to Omari.
The defamation case between the two advocates will now proceed before the High Court.
