Blow to lawyer Nelson Havi after High Court dismissed an application seeking to terminate a defamation suit filed against him by fellow advocate Danstan Omari.
In a ruling Justice Janet Mulwa declined to grant Havi’s request to strike out the suit on grounds that summons to enter appearance had not been issued or served as required under the Civil Procedure Rules.
Havi had asked the court to strike out a memorandum of appearance filed by Osundwa & Co. Advocates on his behalf, set aside proceedings conducted between January and June 2025, invalidate a request for interlocutory judgment filed by Omari, declare the suit as having abated for failure to issue and serve summons, and in the alternative transfer the matter to the Chief Magistrate’s Court at Milimani.
He argued that the failure to extract and serve summons within the prescribed period rendered the suit incompetent and further claimed that he had never instructed Osundwa & Co. Advocates to act for him in the matter.
However, Omari opposed the application, stating that advocates had entered appearance on Havi’s behalf, filed pleadings, attended court mentions and even engaged in discussions to compromise an interlocutory application, demonstrating active participation in the proceedings.
Before addressing the substantive question of whether the suit had abated for want of summons, the court considered whether the application itself was properly before it.
The judge found that at all material times Osundwa & Co. Advocates were on record for Havi and that there was no proper Notice of Change of Advocates filed to allow Havi & Co. Advocates to come on record as required under Order 9 of the Civil Procedure Rules.
The court further held that Havi failed to discharge the evidential burden of proving that he had not instructed the firm that entered appearance on his behalf.
In the absence of compliance with procedural requirements governing change of advocates, the court ruled that the motion was incompetent and declined to delve into the merits of the arguments on service of summons.
Consequently, the High Court dismissed the application with costs to Omari, paving the way for the defamation suit to proceed before the court.
