[2023] KEHC 26982 (KLR)
The court found that the firm of Steve Muriira & Co. Advocates was properly on record for the appellants in the appeal, as the appeal is a separate suit from the lower court proceedings and thus did not require consent or leave under Order 9 Rule 9 of the Civil Procedure Rules. On the issue of reinstatement, the...
Source-derived case information.
- Citation
- [2023] KEHC 26982 (KLR)
- Parties
- Appellant: Bidii Traders Savings Group (Suing thru Simon Kiambi Ngaruni (Secretary)); Appellant: Fridah Kinya Kiambi (Vice Secretary); Respondent: Stephen Kiarie (Chairman); Respondent: Teresia Wanjara (Treasurer)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E103 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- Application allowed; appeal reinstated; time for filing and serving record of appeal extended.
- Judges
- TW Cherere
- Legal Topics
- Reinstatement of Appeal, Change of Advocates, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bidii Traders Savings Group (Suing thru Simon Kiambi Ngaruni (Secretary))
Appellant
Fridah Kinya Kiambi (Vice Secretary)
Appellant
Stephen Kiarie (Chairman)
Respondent
Teresia Wanjara (Treasurer)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the firm of Steve Muriira & Co. Advocates is properly on record for the appellants after judgment in the lower court.
- 2 Whether the appellants have made out a case for reinstating the appeal after failure to file the record of appeal within the prescribed time.
Ratio Decidendi
The court found that the firm of Steve Muriira & Co. Advocates was properly on record for the appellants in the appeal, as the appeal is a separate suit from the lower court proceedings and thus did not require consent or leave under Order 9 Rule 9 of the Civil Procedure Rules. On the issue of reinstatement, the court held that although the appellants failed to file the record of appeal within the prescribed time, the failure was attributable to their advocate and not to the appellants themselves. The court emphasized that justice should not be denied due to counsel's mistake, especially where the respondents had not demonstrated any undue prejudice. Consequently, the court exercised its...
Court Disposition
Application allowed; appeal reinstated; time for filing and serving record of appeal extended.
Orders
- The firm of Steve Muriira & Co. Advocates is properly on record for the applicants.
- The time for filing and serving the record of appeal is extended by 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
31 paragraphs
Bidii Traders Savings Group (Suing thru Simon Kiambi Ngaruni (Secretary) & another v Kiarie (Chairman) & another (Civil Appeal E103 of 2021) [2023] KEHC 26982 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26982 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E103 of 2021
TW Cherere, J
December 14, 2023
Between
Bidii Traders Savings Group (Suing thru Simon Kiambi Ngaruni (Secretary)
1st Appellant
Fridah Kinya Kiambi (Vice Secretary)
2nd Appellant
and
Stephen Kiarie (Chairman
1st Respondent
Teresia Wanjara (Treasurer)
2nd Respondent
Ruling
1. By orders dated March 13, 2023, this court directed Appellants to file and serve the record of appeal within 30 days and fixed the matter for mention on July 11, 2023 to confirm compliance.
2. On July 11, 2023, the record of appeal had yet not been filed and the time for compliance was extended to October 4, 2023.
3. On October 4, 2023, there was still no compliance. Since the Appellants’ advocate was absent, no explanation was offered for non-compliance and the court marked the appeal as abandoned.
4. By summon dated October 19, 2023, Appellants seek reinstatement of the appeal. By an affidavit sworn on October 19, 2023, Appellants fault their advocate for not filing the appeal as directed by the court. Annexed to the affidavit are Copies of proceedings and judgment and Appellants urge the court to grant them time to prepare and file the record of appeal.
5. The application is opposed by way of an affidavit sworn by the 1st Respondent on November 1, 2023 faulting the Appellants for moving the court 15 days after the dismissal of the appeal which time they contend is inordinate. They also urge court to find that the firm of Steve Muriira & Co. Advocates is not properly on record for the Appellants.
Analysis and Determination 6. I have considered the notice of motion in the the light of the affidavits and annexures on record and I have deduced the following issues for determination:1. Whether the firm of Steve Muriira & Co. Advocates is properly on record for the Applicants2. Whether Appellants have made out a case for reinstating the appeal
Whether the firm of Steve Muriira & Co. Advocates is properly on record for the Appellants 7. The objection raised by the Respondents touches on the locus standi of the firm of Steve Muriira & Co. Advocates to represent Applicants after delivery of judgment in the trial court.
8. The provisions of order 9 rule 9 of the Civil Procedure Rules make it mandatory that change of Advocates after judgment has been entered must be through an order of the court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate (See Violet Wanjiru Kanyiri v Kuku Foods Limited [2022] eKLR).
9. The lower court matter and this Appeal are separate suits. In my considered view, the firm of Steve Muriira & Co. Advocates neither required any consent from the advocate that acted for the Appellants in the lower court nor leave of court to act in this matter.
Whether Applicants have made out a case for reinstating the appeal 10. Whereas it is on record that Appellants did not file the record of appeal within the time allowed by the court, it should be the court’s last resort to deny a party a chance to be heard on merit especially in a case like this one where the Respondents have not demonstrated that the orders sought will cause them any undue difficulty or prejudice.
11. In any case, the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better as counsel in this case ought to have known (See Belinda Murai & 9 others v Amos Wainaina [1979] eKLR).
12. Consequently, I find that the interests of justice are in favour of reinstating the appeal for hearing. The upshot is that the notice of motion dated October 19, 2023 is allowed and it is hereby ordered:1. The firm of Steve Muriira & Co. Advocates is properly on record for the applicants2. The time for filing and serving the record of appeal is extended with 45 days from today’s date3. Mention on February 29, 2024 to confirm compliance and for orders concerning the disposal of the appeal.
DATED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Munene/KinotiFor Appellants - Mr. Muriira for Steve Muriira & Co. AdvocatesFor Respondents - Mr. Muthomi for Kiautha Arithi & Co Advocates