Kaplan & Stratton v L.Z. Engineering Construction Ltd & 2 others [2001] KECA 161 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a law firm's bid to restart its appeal, finding a judge's lunches with opposing counsel posed no bias risk.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned single Judge erred in refusing to disqualify himself from hearing the application, given the two luncheons with Mr. Esmail, counsel for the first two respondents
- 2.Whether the applicant was entitled to extension of time to lodge a fresh notice of appeal and record of appeal after its earlier appeal was struck out
- 3.Whether a company not in liquidation may appear by an advocate without a resolution under seal under rule 22(2) of the Rules
Key legal issues
#Recusal and real danger of bias
The refusal by the learned single Judge to disqualify himself was proper; two luncheons with counsel for a party, in a public restaurant, did not create a real danger of bias and the onus lay on the applicant to show otherwise
The Court held that judges appointed from the Bar retain friendships which do not imply favouritism. The test is real danger of bias, drawing on Locabail and Clenae. The luncheons were relatively trivial, the application before the Judge was a simple legal exercise with no facts of demeanour to decide, and no misdirection or resulting injustice was demonstrated. The Court declined to substitute its own discretion for that of the single Judge.
Extension of time for a fresh notice of appeal after prior invalid notice
The application was misconceived; the applicant had been told 19 months earlier that its notice of appeal was invalid for want of prior sanction, and its genuine belief ceased to be valid after that ruling
The Court reaffirmed that sanction under section 241(1)(c) of the Companies Act means approval in advance, following its own decision in Civil Appeal No. 14 of 1998. The applicant entertained a pious hope the Court would depart from that ruling; a decision between immediate parties binds them. Further, a notice of appeal once filed remains on record until struck out, so leave to lodge a fresh notice while the first remained on record was misconceived.
Appearance by a company under rule 22(2)
A company not in liquidation may appear by an advocate without a resolution under seal; the disjunctive 'or' in rule 22(2) permits appearance either by advocate or by an authorised officer, and the earlier dictum suggesting invalidity concerned companies in liquidation
The learned single Judge had properly ruled that Mr. Esmail, a director of L.Z., could appear as its advocate within rule 22. The Court construed rule 22(2) disjunctively: appearance may be by advocate or by officer under sealed resolution. The dictum in Civil Appeal No. 39 of 1998 suggesting that absence of appointment invalidates an advocate's appearance was, quite obviously, referring to a company in liquidation.
Legal principles established
#- A test of real danger of bias, not mere suspicion or surmise, governs applications for judicial disqualification; trivial social contact such as a public luncheon does not establish it
- Sanction of the court under section 241(1)(c) of the Companies Act for a liquidator's appointment of advocates means approval in advance; ex post facto sanction does not validate a notice of appeal signed without prior sanction
- A decision of the Court of Appeal between immediate parties remains binding on those parties; an advocate who ignores it and waits hoping it may be varied does so at his own peril
- A notice of appeal, once filed, remains on record until struck out by the Court; the deeming provision in rule 82(a) applies only when the Court so orders
- Under rule 22(2) of the Court of Appeal Rules, a company may appear either by an advocate or by an officer authorised by resolution under seal, the disjunctive 'or' being decisive
- An appellate court will not interfere with a single Judge's exercise of discretion unless misdirection or clear wrong resulting in injustice is shown
Court orders
#- 1.The reference is dismissed with costs
- 2.The extension of time sought is refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal (single Judge, reference under rule 54(1)(b))
- Civil Application No. Nai. 115 of 2000 (decision of learned single Judge of 5th July, 2000)
- Jurisdiction invoked
- Rule 54(1)(b) of the Court of Appeal Rules (reference from decision of a single Judge)
Relief refused
#Extension of time to lodge and serve a fresh notice of appeal and record of appeal
The applicant waited 19 months after the Court's ruling of 18th September 1998 that sanction means approval in advance; the application for leave to lodge a fresh notice of appeal while the first notice remained on record was misconceived
Disqualification (recusal) of the learned single Judge
The applicant failed to show a real danger of bias from two luncheons between the Judge and Mr. Esmail; no misdirection in the exercise of the Judge's discretion was shown
Costs
The reference is dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
What must be shown so that a Judge would disqualify himself is that there would be real danger of bias.
It follows, therefore, that the notice of appeal having been signed by a person or persons not authorized or sanctioned to sign on behalf of the appellant the notice of appeal is invalid and of no effect.
We think that the present application by Kaplan & Stratton for leave to lodge a fresh notice of appeal out of time, whilst the first notice of appeal still is on record, is misconceived.
For all these reasons we dismiss this reference with costs and refuse the extension of time sought.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR)[2025] KECA 790 (KLR)9 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kaplan & Stratton v L.Z. Engineering Construction Ltd & 2 others [2001] KECA 161 (KLR)", Case Analysis (2001). Civil Application No. Nai. 115 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/161/eng@2001-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.