By Andrew Kariuki
The High Court has dismissed an application by lawyer Nelson Havi seeking to terminate a defamation suit filed against him by fellow advocate Danstan Omari, clearing the way for the case to proceed.
In its ruling delivered in Nairobi, the court declined Havi’s request to strike out the suit, finding that the application was procedurally defective and could not be sustained.
Advocate Havi had moved to court seeking a raft of orders, including the striking out of a memorandum of appearance filed on his behalf by Osundwa & Co. Advocates, the setting aside of proceedings conducted between January and June 2025 and the invalidation of a request for interlocutory judgment filed by Omari.
He also sought a declaration that the suit had abated on the basis that summons to enter appearance were not extracted or served within the time required under the Civil Procedure Rules and in the alternative, requested that the matter be transferred to the Chief Magistrate’s Court at Milimani.
In his application, Havi argued that the failure to issue and serve summons rendered the suit incompetent, and further claimed that he had not instructed Osundwa & Co. Advocates to act on his behalf in the matter.
Omari opposed the application, maintaining that the advocates were properly on record for Havi and had actively participated in the proceedings by filing pleadings, attending court mentions and engaging in discussions aimed at resolving interlocutory issues.
Before considering the substantive arguments on whether the suit had abated, the court first addressed the question of whether Havi’s application was properly before it.
The judge found that at all material times, Osundwa & Co. Advocates remained the firm on record for Havi, and that no proper Notice of Change of Advocates had been filed to allow Havi & Co. Advocates to come on record in accordance with Order 9 of the Civil Procedure Rules.
The court further held that Havi had failed to provide sufficient evidence to support his claim that he had not instructed the firm that had entered appearance on his behalf.
In the absence of compliance with the procedural requirements governing representation, the court found the application to be incompetent and declined to consider the merits of the arguments relating to the alleged failure to issue and serve summons.
The High Court consequently dismissed the application with costs to Omari, allowing the defamation suit to proceed to hearing.
