[2004] KEHC 988 (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 in the superior court. The rule is designed to protect advocates from being replaced without notice after judgment. Since Abuodha & Omino Advocates, who were not on record...
Source-derived case information.
- Citation
- [2004] KEHC 988 (KLR)
- Parties
- Appellant: John Kahiga (as substituted with Ndungu Mwaura); Respondent: Gichia Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 75 of 2004
- 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 Pending Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kahiga (as substituted with Ndungu Mwaura)
Appellant
Gichia Ngugi
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 filed by new advocates without leave of court after judgment is competent.
- 2 Whether Order 3 Rule 9A of the Civil Procedure Rules applies to appeals.
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 in the superior court. The rule is designed to protect advocates from being replaced without notice after judgment. Since Abuodha & Omino Advocates, who were not on record in the lower court, filed the application without first seeking leave of the court as required, the application was incompetent. The court found that the failure to comply with the procedural requirement rendered the application fatally defective and it was therefore struck out with costs to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application filed by Abuodha & Omino Advocates is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 75 OF 2004
JOHN KAHIGA (as substituted with)
NDUNGU MWAURA …………..………….…………..……..………… APPELLANT
VERSUS
GICHIA NGUGI …………………..….……………………..……….. RESPONDENT
RULING
The application before this court is brought under Section 79 G of the Civil Procedure Act and Section 3 A and Order XLI Rule 4 of the Civil Procedure Rules in which the Applicant seeks leave to file appeal out of time and for stay pending appeal. The Application is filed on behalf of the Appellant by Abuodha & Omino Company Advocates.
It is common ground that Abuodha & Omino Advocates were not the advocates of the Appellant in the lower court, and 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 i n person shall not be effected without an order of the court upon an application with 90notice to the Advocate on record.”
Accordingly, at the hearing of this application, Mr Gikonyo, Counsel for the Respondent submitted to the court that Order 3 Rule 9 A, not having been complied with, the Application was incompetent, and ought to be struck out.
Mr Omino, Counsel for the Appellant, while admitting that leave of the court had not been sought, argued that such leave was not required on appeal, as the case in the subordinate court had been concluded.
I do not agree with Mr Omino’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 Ltd vs About Africa Ltd , 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 on record 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 Abuodha & Omino 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 10th day of December, 2004.
ALNASHIR VISRAM
JUDGE