A bid by former Law Society of Kenya President Nelson Havi to derail a defamation case lodged against him by advocate Danstan Omari has failed after the High Court struck out his application with costs.
In a ruling delivered by Justice Janet Mulwa, the court found that Havi’s attempt to invalidate the proceedings was itself procedurally flawed, effectively paving the way for Omari’s suit to proceed.
Havi had challenged the legitimacy of the case on two main fronts. First, he disowned the firm of Osundwa & Company Advocates, insisting he had never instructed it to represent him and that any pleadings filed in his name were therefore null. On that basis, he sought to have all proceedings conducted while the firm was on record set aside.
He further argued that the suit was incompetent for want of summons to enter appearance,<span;>claiming he had neither been served nor notified in accordance with the Civil Procedure Rules. He also asked the court to strike out Omari’s request for interlocutory judgment.
Omari, however, maintained that Havi had actively engaged in the matter through counsel, filing documents and corresponding on the case. Any issue concerning summons, he argued, was a technical defect capable of being cured and, in any event, had been overtaken by Havi’s participation in the proceedings.
In dismissing the application, Justice Mulwa pointed to the court file and the Case Tracking System, both of which reflected that Osundwa & Company Advocates were properly on record for Havi at the material time.
The judge noted that despite disowning the firm, Havi presented no evidence to substantiate his claim, no protest letter, no affidavit from the said advocates, and no testimony suggesting they acted without instructions. The court found it improbable that an advocate would enter appearance and file pleadings without a client’s authority.
The court also observed that no valid notice of change of advocates had been filed to replace Osundwa & Company Advocates with Havi & Company Advocates, as required under the law, underscoring that procedural rules on representation are not mere technicalities but safeguards of order in litigation.
Although the court acknowledged that summons serve the critical purpose of notifying a defendant of proceedings, it declined to interrogate that complaint, holding that Havi’s application was improperly before the court since it had been filed by a firm not duly on record.
With that finding, the court struck out the application in its entirety and awarded costs to lawyer Omari.
The defamation dispute between the two advocates will now proceed before the High Court.
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