[2004] KEHC 1260 (KLR)
The court held that Order 3 Rule 9A of the Civil Procedure Rules is mandatory and applies to appeals, as an appeal is a continuation of the suit. The applicant's advocates, A. N. Ngungiri & Company, had not sought leave of the court to come on record after judgment as required. Filing a Notice of Change of Advocates...
Source-derived case information.
- Citation
- [2004] KEHC 1260 (KLR)
- Parties
- Appellant: Gitonga Kithinji Muriuki; Respondent: Barako Ukarara
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 543 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay Pending Appeal
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Legal Topics
- Change of Advocate, Leave to Appeal Out of Time, Stay of Execution, Procedural Incompetence
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gitonga Kithinji Muriuki
Appellant
Barako Ukarara
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay Pending Appeal
Legal Issues
- 1 Whether the application for leave to file an appeal out of time and for stay pending appeal is competent when filed by advocates who have not sought leave under Order 3 Rule 9A of the Civil Procedure Rules.
- 2 Whether the failure to comply with Order 3 Rule 9A renders the application fatally defective.
Ratio Decidendi
The court held that Order 3 Rule 9A of the Civil Procedure Rules is mandatory and applies to appeals, as an appeal is a continuation of the suit. The applicant's advocates, A. N. Ngungiri & Company, had not sought leave of the court to come on record after judgment as required. Filing a Notice of Change of Advocates without the requisite leave does not cure the defect. The application was therefore filed without authority and is incompetent. Consequently, the application for leave to file an appeal out of time and for stay pending appeal was struck out with costs to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application filed by A. N. Ngungiri & Company Advocates is struck out as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 543 OF 2002
GITONGA KITHINJI MURIUKI ……………......…………. APPELLANT
VERSUS
BARAKO UKARARA …………………….…………….. RESPONDENT
RULING
This is an application brought under Section 79 G of the Civil Procedure Act, Order L Rule 1 and Order XLI Rule 4 (1) (2) (b) and Order XLIX Rule 5 of Civil Procedure (Revised) Rules and Under Section 3, 3 A and 63 (e) and all the other enabling provisions of the law in which the applicant seeks leave to file an appeal out of time, and for stay pending appeal. The application is filed on behalf of the Appellant/Applicant by A. N. Ngungiri & Company Advocates.
It is common ground that A. N. Ngungiri & Company were not the advocates of the Appellant in the lower court, and that they have not applied for leave to represent the Appellant as required by Order 3 Rule 9 A of the Civil Procedure Rules which stipulates as follows:
“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be affected without an order of the court upon an application with notice to the Advocate on record.”
Accordingly, during the hearing of the application for leave to file appeal, Mr Ngaah, Counsel for the Respondent raised this issue arguing that Order 3 Rule 9 A, not having been complied with, the Application was incompetent, and ought to be struck out.
Mr Ngungiri, Counsel for the Appellant/Applicant, while admitting that leave of the Court had not been sought, argued that they filed a Notice of Change of Advocates for purposes of appeal only; therefore there was no need to seek leave.
I do not agree with Mr Ngunguri’s submission. Order 3 Rule 9 A is clear beyond peradventure. It has been enacted for the benefit of advocates themselves to prevent the mischief of clients jumping ship after judgment. The Rule is important, and has been held mandatory (See, for example, Kubo Safaris Limited vs About Africa Limited (Mombasa HCCC 681 of 1995).It applies on appeal, because an appeal is a continuation of the suit in the superior court. Indeed Order 9 Rule 12 stipulates that the advocate is “considered an advocate of the party to the final conclusion of the cause or matter including any review or appeal”.
Accordingly, the application before this court purportedly filed by A. N. Ngungiri & Company Advocates is incompetent as it was filed without authority, and is hereby struck out, with costs to the Respondent.
Dated and delivered at Nairobi this 16th day of November, 2004.
ALNASHIR VISRAM
JUDGE