PALS WAGENAAR v JOEL E. D. NYASEME & WALTER EDWIN OMINDE [2011] KEHC 899 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL SUIT NO. 5 OF 2009

PALS WAGENAAR ………………………….....................................……………..PLAINTIFF

VERSUS

JOEL E. D. NYASEME……………….....................................………………..1ST DEFENDANT

WALTER EDWIN OMINDE …….....................................……………………2ND DEFENDANT

RULING

The application dated 3rd June 2011 coming up for hearing on 19th October 2011 prays for several orders namely:-

(1)Pending the hearing and determination of the instant application  the Honourable court be pleased to grant an interim order of stay of execution of the default judgment and/ or decree issued against the 2nd defendant / applicant on the basis non appearance and or default of pleadings.

(2)The Honourable Court be pleased to review, rescind and or vary the consent order vide consent letter dated 7th March 2011 and filed in court on even date.

(3)Consequent to prayer (3) hereinabove being granted the Honourable court be pleased to strike out and expunge the amended plaint request for judgment and all consequently documents and/or pleadings filed by and or at the instance of the plaintiff / respondent.

(4)The Honourable court be pleased to set aside and/or vary the default judgment entered against the 2nd defendant / applicant herein.

They further prayed for costs.

I have read the application in contention  together with the replying affidavit by Patrick J. O. Otieno Advocate.I have also heard the counsels’ oral submissions.   The question before me is whether or not  the consent entered on 7th March 2011 between the firm of Otieno, Yogo & Co Advocates acting for the applicants in the application dated 27th January 2011 and Oguttu Mboya & Company acting for the respondent was valid.

I have perused through the courts records and I am not able to see where the firm of Oguttu Mboya has filed its paupers of appointment so as to act for the respondent a Mr. Walter Edwin Ominde.   The firm of K’opot & Co Advocates came on record on 22nd September 2009, styling themselves as acting for an intended co-plaintiff.

On 20th July 2010 the said Edwin Walter Ominde filed his application to be enjoined as a co-plaintiff.  The same was allowed on 6th October 2010. Apparently Mr. Yogo was present and consented to the said application. Interestingly, on 27th January 2011 the firm of Otieno Yogo filed an application to bring in Walter Edwin Ominde as a co-defendant. I belief this is still the same Walter Edwin Ominde who had been made a co-plaintiff earlier on 6th October 2010.  The said application was served  upon K’opot & Co Advocates.

The firm of K’opot did file grounds of opposition on 27th February 2011. That application was compromise by the consent dated 7th March 2011 which is the subject matter in contention. As I have indicated above the firm of Oguttu Mboya never filed any documents. All along the firm of Otieno Yogo Advocates acted and served the firm of Kopot & Co Advocates.In any case already the 2nd defendant had already come on record. Whatever the application dated 27th January 2011 was to serve is unclear.

Neither the parties who caused the confusion Mr. Oguttu Mboya nor Walter Edwin Ominde filed any affidavits to rebut or otherwise. Mr. Mboya if indeed he spoke with Mr. Otieno Advocate should have shed some light by filing the necessary affidavits.

Consequently, it’s my considered opinion that the firm of Kopot & Co Advocates all along acted for the 2nd defendant as long as there was no such change of Advocates. In the premises I do allow the application 3rd June 2011 and order that:-

(a)There is an error apparent on the face of the record and the consent order dated 7th March 2011 and filed on the same date is set aside.

(b)The amended plaint dated 18th March 2011 is struck out together with the request for judgment entered against the 2nd defendant.

(c)Cost to the applicant.

Orders accordingly.

Dated, signed and delivered this 2nd day of  November 2011.

H. K. CHEMITEI

JUDGE

HKC/aao