Joseph Wangombe Thuo & Jane Wanjiru Wangombe v Bank of Africa Kenya Limited [2018] KEHC 5960 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 128 OF 2018

JOSEPH WANGOMBE THUO................1ST PLAINTIFF

JANE WANJIRU WANGOMBE...........2ND PLAINTIFF

VERSUS -

BANK OF AFRICA KENYA LIMITED.....DEFENDANT

RULING

1. The two plaintiffs in this matter filed this suit on 3rd November, 2015. At the time of filing the suit, they were represented by the law firm of Munyasya & Co. Adv.

2. On 24th November, 2015 Judgment was entered in favour of the defendant as against the plaintiffs for Ksh. 12,394,435. 98. In that consent signed by counsels of the plaintiffs and the defendant, a schedule of payment of that agreed amount was set out. The court adopted that consent on 24th November, 2015. Accordingly, a decree was drawn in terms of that consent.

3. An application dated 29th March, 2018, was filed on behalf of the plaintiffs by the law firm, Muturi Njoroge & Co. Advocates. It was not on record that the said firm of lawyers obtained the leave of the court as required under Order 9 Rule 9 of the Civil Procedure Rules, nor is it on record that the firm of Muturi Njorige & Co. Advocates filed a Notice of Appointment.

4. The defendant raised a Preliminary Objection to the plaintiffs, filed by the law firm Muturi Njoroge & Co. Advocates. The basis of that objection was that the application offends Order 9 Rule 9 of the Civil Procedure Rules.

5. Order 9 Rule 9 provides:

“When there is a change of advocates, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court.”

6. Looking at the above provision, and considering the background of this matter as set out above, that judgment by consent was entered on 24th November, 2015 and a decree was drawn, a new advocate could not act for the plaintiffs without the leave of the court being obtained.

7. It is because of the above finding that this court finds that there is merit in the defendant’s Preliminary Objection dated 18th May, 2018, and it is upheld. The applications, the two of them, filed and dated 29th March, 2018 by the law firm of Muturi Njoroge & Co. Advocates are hereby struck out with costs to the defendant. It is so ordered

DATED, SIGNED and DELIVERED at NAIROBI this13thday of June2018.

MARY N. KASANGO

JUDGE

Ruling read in open court in the presence of

Court Assistant.............................Sophie

...................................for the 1st Plaintiff

..................................for the 2nd Plaintiff

......................................for the Defendant