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Court of AppealPartially AllowedCivil Appli Nai 310 of 2005· [2006] KECA 337 (KLR)

Ryce Motors Limited v Jonathan Kiprono Ruto

Court of Appeal of Kenya
21 February 2006
WDW. S. Deverell
1,612 words in judgment
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The bottom line

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Kenya's Court of Appeal restored Ryce Motors' dismissed appeal application, ruling a new advocate with court-granted leave can act even without a formal notice of change.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Deverell JA on a restoration application. Ryce Motors Limited, which had lost a counterclaim to Jonathan Kiprono Ruto before Osiemo J on 29 May 2002 in H.C.C.C. No. 559 of 1995, sought extension of time to file its memorandum and record of appeal (Civil Appli Nai 245 of 2005). That application was dismissed on 24 October 2005 under rule 55(1) of the Court of Appeal Rules for non-attendance. The applicant's new advocates, Shapley Barret & Marsh & Co., filed the present restoration application under rules 55(3) and 42, explaining that the non-appearance stemmed from a recent change of advocates of which the new firm was unaware, and pointing to the deposit of the decretal sum in a joint interest-earning account as security. The respondent did not dispute those facts but objected that the new firm lacked locus standi because no notice of change had been lodged under rule 23(1) of the Rules. The court held that rule 23(1), unlike rule 23(2), does not specify when a change of advocate becomes effective, and that an advocate who has complied with Order III rule 9A of the Civil Procedure Code (leave to change advocates after judgment, here granted by consent) cannot lack authority to file an interlocutory application in the Court of Appeal. The objection was dismissed and, no other ground of opposition having been urged, the restoration application was allowed, with costs of the restoration application to be in the restored application No. Nai. 245 of 2005.

Key legal issues

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01

Effect of rule 23(1) of the Court of Appeal Rules on a new advocate's locus standi

Holding

Rule 23(1) does not specify when a change of advocate becomes effective; absence of a lodged notice of change does not deprive an advocate who has obtained leave under Order III rule 9A of authority to act in this Court.

Reasoning

The court contrasted sub-rule (1) with sub-rule (2), noting only the latter contains words specifying when the change takes effect. In the absence of any provision in the Rules to the contrary, compliance with Order III rule 9A of the Civil Procedure Code suffices to confer authority to seek interlocutory relief. The objection to locus standi was therefore dismissed.

p. 3
02

Restoration of an application dismissed for non-attendance under rule 55(1)

Holding

Where non-attendance is not deliberate and arises from a genuine mistake (change of advocates, new firm unaware of the hearing date), and the applicant shows bona fides (decretal sum deposited in a joint interest-earning account), restoration should be allowed.

Reasoning

The respondent did not challenge the facts explaining the non-appearance; his only opposition was the locus standi point, which failed. With no other grounds urged, the court allowed the restoration of the dismissed extension-of-time application.

p. 3

Legal principles established

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  • An advocate who has complied with Order III rule 9A of the Civil Procedure Code (leave to change advocates after judgment) cannot be said to lack authority to file an interlocutory application in the Court of Appeal, notwithstanding that a notice of change under rule 23(1) of the Court of Appeal Rules has not been lodged.

Court orders

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  1. 1.The restoration application (Civil Appli Nai 310 of 2005) for restoration of application No. Nai. 245 of 2005 is allowed
  2. 2.The costs of application No. Nai. 310 of 2005 shall be in the application No. Nai. 245 of 2005

Authorities

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Legislation

  • Civil Procedure Code (Cap 21)Order III rule 9A
  • Court of Appeal Rulesrule 55(1)
  • Court of Appeal Rulesrule 55(3)
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 23(1)
  • Court of Appeal Rulesrule 23(2)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 559 of 1995
Jurisdiction invoked
Rule 55(3) and rule 42 of the Court of Appeal Rules (application for restoration of a dismissed application for extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ryce Motors Limited v Jonathan Kiprono Ruto", Case Analysis (2006). Civil Appli Nai 310 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/337/eng@2006-02-21

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