Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 109 of 1997· [1997] KECA 376 (KLR)

Benson Kamau Kareithi v Henry Gathu Thande [1997] KECA 376 (KLR)

Court of Appeal
6 November 1997
RKR. O. KwachALA. A. LakhaSBS. E. O. Bosire
242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a lawyer's concession in court about being served with papers binds the client and can decide the whole case.

What this practically means

#

Executive summary

#
This was an appeal to the Court of Appeal at Nairobi against a decision of Shields, J. of the High Court dated 30 May 1986 in H.C.C.C. No. 74 of 1979, dismissing an application by the appellant to set aside a judgment entered in terms of an award filed and read in court. The application was supported by an affidavit of the appellant's then advocate and was based solely on the ground of non-service. The Court of Appeal, in a single judgment of the court delivered by Kwach, Lakha and Bosire, JJ.A. (Bosire acting), held that the High Court judge was satisfied that service had been effected, and that when this was demonstrated to Mr. Kinuthia for the appellant, counsel conceded - properly, in the Court's view - that there was service. That concession was held to dispose of the appeal, which therefore failed. The Court additionally observed that it was seised of an attack on a judgment entered by Aganyanya, J. against which there was no notice of appeal or any appeal. The appeal was dismissed with costs to the respondent. The decision affirms the High Court's refusal to set aside the judgment and confirms the binding effect of a properly made concession by counsel on the question of service.

Key legal issues

#
01

Whether the judgment entered in terms of an award filed and read in court should have been set aside for non-service

Holding

The appeal fails because the appellant's advocate conceded that there was service, and that concession was properly made and accepted by the High Court judge.

Reasoning

The application to set aside the judgment was supported by the appellant's advocate's affidavit and based solely on the ground of non-service. The High Court judge was satisfied that service had been effected, and when this was demonstrated to counsel for the appellant, counsel conceded that there was service. The Court of Appeal regarded the concession as properly made, and since the application rested exclusively on non-service, the concession disposed of the appeal. The Court also noted that the attack on the judgment entered by Aganyanya, J. was without a notice of appeal or any appeal.

p. 1

Legal principles established

#
  • A concession by counsel before the High Court that service of process was effected, if properly made, binds the party and disposes of an appeal founded solely on the ground of non-service.
  • An appellate court will not entertain an attack on a judgment against which no notice of appeal or appeal has been filed.

Court orders

#
  1. 1.The appeal is dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 74 of 1979
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act (appeal from the Order of the High Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Benson Kamau Kareithi v Henry Gathu Thande [1997] KECA 376 (KLR)", Case Analysis (1997). Civil Appeal No. 109 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/376/eng@1997-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.