The High Court has dismissed an application by former Law Society of Kenya President Nelson Havi seeking to have a defamation suit filed by lawyer Danstan Omari struck out.

Justice Janet Mulwa struck out Havi’s motion with costs meaning the case against him can now proceed.

Havi had filed a notice of motion seeking to have Omari’s application dated 12th June 2025 struck out.

He also wanted the suit to be deemed to have abated for want of issuance and/or service of enter appearance upon summons to Defendant/Applicant on time or at all.

In addition, Havi also wanted the Memorandum of Appearance dated 14th January 2025 together with all documents filed subsequent thereto in the suit by Osundwa & Company Advocates on his behalf be struck out.

The former LSK president also wanted the entire proceedings herein commencing 27th January/2025 to 12th June 2025 in which Osundwa & Company Advocates appeared for him be set aside.

Havi argued that he never instructed Osundwa & Co. to act for him and no summons to enter appearance were extracted or served as required under the Civil Procedure Rules.

Omari opposed the same saying that Havi was not entitled to the same as he had already participated in the case.

Justice Mulwa found that Havi never placed evidence before the court to support the claim that he never instructed Osundwa & Co. to act for him.

According to the judge, if it was the defendant’s case that he did not instruct the latter firm, the burden of proof and or onus was on him to discharge the said burden, either by protest letter from the defendant to the said firm; or calling the said proprietor of the said firm to render testimony on oath concerning whether he was duly instructed to act in the matter; or a letter from the said firm stating that it was not instructed to act for the Defendant.

“Obviously, neither of the above or otherwise was placed before the Court for consideration,” the judge noted.

Further, the judge ruled that while the defendant has made heavy weather of the fact that he did not instruct the firm of Osundwa & Co. Advocates to come on record on its behalf, she was inclined to agree with Omari’s submissions that it is highly unlikely that the latter firm would enter appearance in the matter without being formally instructed.