NAIROBI, Kenya — The High court has dismissed an application by lawyer Nelson Havi seeking to strike out a lawsuit filed against him by Danstan Omari over summons dispute after it was found that Havi had failed to properly come on record to discharge his evidential burden.
Justice Allan Neru delivered the ruling on February 12,2026 striking out Havi’s June 23,2025 application with costs after finding Havi’s motion as incompetent as the firm of Osundwa and Advocates had remained lawfully on record for Havi, as the applicant had not filed a notice of change of advocate as required under Order 9 rule 5 of the Civil Procedure Rules
Havi had moved to the court seeking orders that included a declaration to have Omari’s suit declared as abated for the alleged failure to issue and serve summons within 30 days.
He had also sought to have the memorandum of appearance filed by Osundwa & Company Advocates to be dismissed, claiming that he had not instructed the firm.
Omari however, opposed the motion, arguing that the advocacy firm had entered an appearance, filed ground of opposition and had also attended multiple mentions on Havis behalf without any objection from Havi.Omari argued that Havi’s engagement through his own firm,sought to compromise the matter,amounting to active participation thereby waiving any defect in service.
The court found that Havi had failed to prove his allegation that he had not instructed Osundwa & Company, with Justice Neru noting that no protest letter, testimony from the advocate or correspondence from the firm was presented before the court.
The ruling emphasised that a former advocate remains on record till a notice of change of advocates is filed and formally served. Since Havi and Company Advocated had filed the contested motion without complying to this rule first, his application was declared detective
Havis’ motion had also sought to have Omari’s request for an interlocutory judgement dated June 12,2025 to be struck out and for the suit to be transferred to the Chief Magistrate’s Court. The court however did not address these prayers on merit because of the preliminary procedural hurdle.
