[2004] KEHC 2260 (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 rule is designed to protect advocates from being replaced without notice after judgment. Since Lillian Mwaniki & Company Advocates had not sought leave of the court to...
Source-derived case information.
- Citation
- [2004] KEHC 2260 (KLR)
- Parties
- Appellant: John Mutua Katete; Respondent: Raphael Kimatu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 413 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Judges
- ARM Visram
- Legal Topics
- Change of Advocate, Leave of Court, Order 3 Rule 9a, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mutua Katete
Appellant
Raphael Kimatu
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an advocate who did not represent a party in the lower court can file an application on appeal without leave of the court as required by Order 3 Rule 9A of the Civil Procedure Rules.
- 2 Whether Order 3 Rule 9A applies to appeals as a continuation of the suit.
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 rule is designed to protect advocates from being replaced without notice after judgment. Since Lillian Mwaniki & Company Advocates had not sought leave of the court to come on record for the appellant after judgment, the application filed by them was incompetent. The court found that the failure to comply with Order 3 Rule 9A rendered the application fatally defective and struck it out with costs to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application filed by Lillian Mwaniki & Company 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 413 OF 1999
JOHN MUTUA KATETE .………………...……………….APPELLANT
VERSUS
RAPHAEL KIMATU ………………………...…………. RESPONDENT
RULING
This is an application for the setting aside of the Orders made by the Lower Court, on March 9, 2002. It is filed on behalf of the Appellant by Lillian Mwaniki & Company, Advocates.
It is common ground that Lillian Mwaniki & 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 9A 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 effected without an order of the Court upon an application with notice to the Advocate on record.”
Accordingly, at the commencement of the hearing of this Application, Mr. Nyabela, Counsel for the Respondents, raised a preliminary objection arguing that Order 3 Rule 9A, not having been complied with, the Application was incompetent, and ought to be struck out. Mr. Mari, 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. Mari’s submission. Order 3 Rule 9A 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 Abo ut 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.” (underlining mine). Accordingly, the application before this Court purportedly filed by Lillian Mwaniki & 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 28th day of June, 2004.
ALNASHIR VISRAM
JUDGE