[1987] KECA 77 (KLR)
The Court held that an advocate, acting within the ordinary scope of his authority, may withdraw an appeal without the client's express consent, and such withdrawal is binding on the client unless the advocate's authority has been expressly limited. Since the appellant's advocate withdrew the appeal and the High...
Source-derived case information.
- Citation
- [1987] KECA 77 (KLR)
- Parties
- Appellant: Peter John Maina Gachiri; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 40 of 1987
- Procedural Posture
- Criminal Appeal / Appeal Against Order Marking File as Closed After Withdrawal of Appeal in High Court
- Outcome
- Appeal struck out as incompetent.
- Judges
- EN Juma, JM Gachuhi, FK Apaloo
- Legal Topics
- Withdrawal of Appeal, Authority of Advocate, Client Consent, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter John Maina Gachiri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Order Marking File as Closed After Withdrawal of Appeal in High Court
Legal Issues
- 1 Whether an advocate requires express authority from the client to withdraw an appeal in the client's absence.
- 2 Whether the High Court's marking of the file as closed, following withdrawal by counsel, precludes a further appeal to the Court of Appeal.
- 3 Whether the purported appeal to the Court of Appeal was competent in the absence of a substantive decision by the High Court.
Ratio Decidendi
The Court held that an advocate, acting within the ordinary scope of his authority, may withdraw an appeal without the client's express consent, and such withdrawal is binding on the client unless the advocate's authority has been expressly limited. Since the appellant's advocate withdrew the appeal and the High Court did not render a decision on the merits, there was no exercise of appellate jurisdiction by the High Court. Consequently, there was no decision upon which a further appeal to the Court of Appeal could be founded. The purported appeal was therefore incompetent and was struck out.
Court Disposition
Appeal struck out as incompetent.
Orders
- The purported appeal is struck out.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NYARANGI, GACHUHI & APALOO, JJ. A.)
CRIMINAL APPEAL NO. 40 OF 1987
BETWEEN
PETER JOHN MAINA GACHIRI…….........………….. APPELLANT
AND
REPUBLIC………………………………………….. RESPONDENT
(Appeal from an order from the High Court of Kenya at Nairobi (B. K. Tanui, J.) dated 23rd January, 1987
in
Criminal Appeal No. 378 of 1986)
JUDGMENT OF THE COURT
The appellant was, on the 29th January, 1986, convicted by the Magistrate's court of stealing and was sentenced to 18 months imprisonment.
He appealed against the conviction to the High Court, as he was entitled to do. The appeal was admitted to hearing and was listed before Mbaluto, J. on the 21st October, 1986. The appellant was absent, so the court adjourned the hearing to the 13th November, 1986. The appellant was thought to be in prison so the judge ordered that he should be brought to court on the adjourned date. On that day the appellant was again absent. Accordingly, the judge adjourned the appeal to "next session."
The appeal finally came before Tanui, J. on the 23rd January, 1987. The appellant was then represented by Mr. Kirundi, Advocates, who informed the court that as the appellant has served his sentence he has withdrawn the appeal. The judge then recorded as follows.
"The file marked as closed".
In view of the withdrawal of the appeal, the learned Judge was disabled from considering the matter on its merits. He, therefore, did not give a decision which he would have been obliged to do under section 354(1) of the Criminal Procedure Code, had the appeal not been abandoned and he had heard argument on the merits.
However, the appellant on the 25th February, 1987, purported to appeal to this court and lodged a memorandum of appeal in which his main complaint was that the learned judge was in error in marking the file as closed, in his absence, in as much as he did not authorise his advocate to withdraw the appeal. The appellant admitted that Mr. Kirundi was at the material time his advocate but his grievance was that he proceeded to withdraw the appeal without his express authorisation. The question, therefore, is whether the appellant's authority or consent was required as a matter of law for his advocate to withdraw appeal? In his opinion, no such authority was required. The settled legal position is:
"The clients consent is not needed for a matter which is within the ordinary authority of counsel.: this if, in court, in the absence of the client, compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound." (see Halsbury's Law of England 3rd Ed. Page 649 paragraph 1181. -
In withdrawing the appeal, Mr. Kirundi must have felt, using his professional judgment, that the appeal stood no chance of success and was not worth pursuing especially as his client, the appellant, had already served his sentence and regained his liberty. The decision to withdraw the appeal was, in the circumstances, binding on the appellant.
In view of the withdrawal, the High Court did not exercise its appellate jurisdiction and did not, therefore, reach a decision on which appeal to this court can be based in accordance with section 361(1) of the Criminal Procedure Code Act. That being so, in our judgment, no proper appeal lay before this court. The purported appeal is incompetent. And ought to be and is accordingly struck out.
Dated and delivered at Nairobi this 10th day of July, 1987.
J.O. Nyarangi
Judge of Appeal
J.M. Gachuhi
Judge of Appeal
F.K. Apaloo
Judge of Appeal
I certify that this is a true copy of the original.
Deputy Registrar