Harit Sheth T/A Harit Sheth Advocate v K. H. Osmond T/A K. H. Osmond Advocate [2003] KECA 159 (KLR)
The bottom line
#A drafting slip in Kenya's court rules cannot cancel a person's right to appeal a ruling on a lawyer's broken payment promise.
What this practically means
#Executive summary
#Key legal issues
#Whether leave of the superior court or of the Court of Appeal is required to appeal against an order dismissing an originating summons for the enforcement of an advocate's undertaking under Order LII rule 7 of the Civil Procedure Rules
No leave is required. Order XLII rule 1(1)(dd), which rendered orders under Order LII rules 4, 5, 6 and 6A appealable as of right, must be read as referring to rule 7, the renumbered successor of rule 6A; the order of 16th October 1998 is therefore appealable as of right.
The Court traced the amendment history: the 1978 amendment inserted rule 1(1)(dd) listing Order LII rules 4, 5, 6 and 6A as appealable as of right, rule 6A then governing enforcement of advocates' undertakings. The 1996 amendment replaced Order LII and renumbered rule 6A as rule 7 in identical terms, but made no consequential amendment to rule 1(1)(dd). Read literally, the reference to the non-existent rule 6A would have no meaning; nothing showed an intention to deprive litigants of a right of appeal, so the omission was inadvertent.
The canons applicable to construing the Civil Procedure Rules as subsidiary legislation where an amendment leaves an obsolete cross-reference
The Civil Procedure Rules have the same force of law as the Civil Procedure Act and therefore attract the statutory canons of construction; they must be construed in accordance with the intention of the Rules Committee, as a whole, purposively, and so as to remain operative.
The Rules are subsidiary legislation made by the Rules Committee under the authority of section 81 of the Civil Procedure Act and carry the same force of law as that Act, so the canons of interpretation of statutes essentially apply. They must be construed as a whole to avoid inconsistency or repugnancy and so as to be operative. Adopting Halsbury's Laws of England (3rd edition, Vol 36, para 582), a clear statutory object is not to be defeated by a literal reading of language due to want of drafting skill unless the language is intractable.
The stage at which a jurisdictional objection of want of leave to appeal should be determined
An objection that no leave was obtained to lodge an appeal, because it touches on the jurisdiction of the Court, should be heard and determined before the hearing of the appeal on the merits.
The respondent's striking-out application raised the want of leave to appeal, a matter the Court regarded as touching its jurisdiction. Although counsel for the respondent withdrew the application on the separate ground that it was out of time under the proviso to rule 80 of the Court of Appeal Rules, the Court directed that the leave question be heard before the merits. The Court then determined it, holding the appeal competent as of right.
Legal principles established
#- An order made on an application for the enforcement of an advocate's undertaking under Order LII rule 7 of the Civil Procedure Rules is appealable as of right; the reference in Order XLII rule 1(1)(dd) to the repealed rule 6A of Order LII must be read as referring to rule 7, so no leave to appeal is required.
- The Civil Procedure Rules, being subsidiary legislation with the force of law, must be construed purposively and as a whole so as to remain operative; an obsolete cross-reference produced by an inadvertent failure to make consequential amendments is not to be read literally so as to deprive a litigant of a right of appeal.
- Where the main object and intention of a statute (or subsidiary legislation) are clear, it should not be reduced to a nullity by a literal following of language attributable to want of skill or knowledge on the part of the draftsman, unless such language is intractable.
Court orders
#- 1.Declaration that the order of the superior court dated 16th October 1998 is appealable as of right
- 2.The appeal to proceed to hearing on its merits on a date to be fixed at the registry
- 3.Costs of these proceedings to be costs in the appeal
- 4.Recommendation to the Rules Committee that appropriate amendments to rule 1(1)(dd) of Order XLII Civil Procedure Rules be made as soon as possible
- On appeal from
- High Court of Kenya (referred to in the judgment as 'the superior court')
- Jurisdiction invoked
- Order XLII rule 1(1)(dd) of the Civil Procedure Rules, construed with Order LII rule 7 - the Court held the order of 16th October 1998 appealable as of right, so no leave was required; the strike-out motion invoked rule 39 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harit Sheth T/A Harit Sheth Advocate v K. H. Osmond T/A K. H. Osmond Advocate [2003] KECA 159 (KLR)", Case Analysis (2003). Civil Appeal No 276 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/159/eng@2003-08-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.