M S Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P. J. O. Otieno
Judgment Date
September 24, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the M S Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR case summary, detailing key judgments and legal principles. Perfect for legal professionals and students alike.

Case Brief: M S Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR

1. Case Information:
- Name of the Case: M S Shariff & Co Advocates v. Omari Mbwana Zonga
- Case Number: MISC APPLICATION NO. 49 OF 2014
- Court: High Court of Kenya at Mombasa
- Date Delivered: 24th September 2020
- Category of Law: Civil
- Judge(s): P. J. O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issue presented before the court was whether the Certificate of Costs dated 5th September 2014 and the judgment on costs entered on 5th October 2016 should be set aside due to alleged lack of service of the bill of costs, Notice of Taxation, and Notice of Motion for judgment upon the client, thereby denying him the right to be heard.

3. Facts of the Case:
The applicant, Omari Mbwana Zonga, claimed that he was unaware of the proceedings against him until he received warrants of attachment. He asserted that he had never instructed the advocate, M S Shariff & Co Advocates, regarding any transaction with Century Apartments Ltd. The relationship between the advocate and the client was claimed to be personal, stemming from a romantic involvement that ended poorly. The advocate countered that the client had been her client since 2005 and had indeed given instructions regarding the purchase of property, supported by correspondence with another law firm.

4. Procedural History:
The client filed a Notice of Motion on 14th March 2017 seeking to set aside the judgment based on lack of service. The advocate opposed this application, asserting that the client had been duly served with all relevant documents. The matter proceeded through several stages, including the filing of affidavits and written submissions by both parties, culminating in a hearing on 29th May 2020.

5. Analysis:
Rules:
The court considered the principles governing the setting aside of default judgments, specifically focusing on whether there was a regular judgment and if there were triable issues warranting the setting aside of the judgment.

Case Law:
The court referenced the cases of Mohammed vs Shoka (1990) KLR 463 and Shah vs Mbogo (1967) EA 116, which outline the court's discretion in setting aside judgments based on established principles, including the necessity of a regular judgment and the presence of a triable issue.

Application:
The court found that the applicant had been served with the Bill of Costs and Notice of Taxation, as well as the application for judgment, and that these were acknowledged by the applicant. The court determined that the applicant failed to provide evidence to contradict the advocate’s claims and that the assertions of lack of service were unsubstantiated. Ultimately, the court ruled that the judgment was regular and that no triable issues were presented that would justify setting aside the judgment.

6. Conclusion:
The High Court dismissed the application to set aside the judgment, concluding that the advocate had been properly served and that the client had not demonstrated any triable issues. The decision reinforces the importance of due process and the necessity for parties to engage with court proceedings promptly.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya ruled against Omari Mbwana Zonga in his application to set aside a judgment regarding legal fees owed to M S Shariff & Co Advocates. The court found that the client had been adequately served and failed to establish any triable issues. This case underscores the significance of timely engagement in legal proceedings and the adherence to procedural requirements in civil litigation.

Document Summary

Below is the summary preview of this document.

  • M-S-Shariff--Co-Advocates-v-Omari-Mbwana-Zonga-[2020]-eKLR-Case-Summary_1241_0.jpg

This is the end of the summary preview.

Related Documents

View all summaries