[2005] KEHC 2956 (KLR)
The court found that the application was incompetently before it because the applicant's new advocate had not sought or obtained leave of the court to come on record after judgment, as required by Order 3 Rule 9A of the Civil Procedure Rules. This procedural defect was fatal to the application, and as a result, the...
Source-derived case information.
- Citation
- [2005] KEHC 2956 (KLR)
- Parties
- Applicant: Amos Mwathi; Respondent: Kahungura Kibugu; Respondent: Kikuyu Town Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 136 of 2003
- Procedural Posture
- Civil Appeal / Application for Leave to File Appeal Out of Time and Reinstatement of Appeal
- Outcome
- Application struck out as incompetent.
- Legal Topics
- Leave to Appeal Out of Time, Reinstatement of Appeal, Change of Advocate, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Mwathi
Applicant
Kahungura Kibugu
Respondent
Kikuyu Town Council
Respondent
Procedural Posture
Civil Appeal / Application for Leave to File Appeal Out of Time and Reinstatement of Appeal
Legal Issues
- 1 Whether the application for leave to file appeal out of time and for reinstatement of the appeal is properly before the court.
- 2 Whether the change of advocates after judgment without leave renders the application incompetent.
Ratio Decidendi
The court found that the application was incompetently before it because the applicant's new advocate had not sought or obtained leave of the court to come on record after judgment, as required by Order 3 Rule 9A of the Civil Procedure Rules. This procedural defect was fatal to the application, and as a result, the court was unable to consider or determine the substantive issues raised. The application was therefore struck out with costs to the respondent.
Court Disposition
Application struck out as incompetent.
Orders
- The application is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Appeal 136 of 2003AMOS MWATHI ……………………………..…………………….…. APPLICANT VERSUS KAHUNGURA KIBUGU ………………...………………….…. 1ST RESPONDENT KIKUYU TOWN COUNCIL …………….....................……….. 2ND RESPONDENT
RULING This is an application under Order 49 Rule 5 and Order 41 Rule 1 for leave to file appeal out of time, and for reinstatement of the appeal filed on 14th March, 2003 which was summarily dismissed by an Order of the High Court under Section 79 B Civil Procedure Act on 19th January, 2004.
I am unable to consider and determine this application as it appears that it is incompetently before this Court. Upon a perusal of this file, I have noticed that there has been a change of advocates representing the Appellant/Applicant, after Judgment was passed in the lower court. The new Advocate, Mr Omotii has not complied with Order 3 Rule 9 A, and has not sought leave of this Court to come on record.Accordingly, and for that reason alone, I am unable to consider the application now before me, as it is incompetently before the Court. The same is, therefore, struck out with costs to the Respondent.
Dated and delivered at Nairobi this 15th day of March, 2005.
ALNASHIR VISRAM JUDGE