Behan & Okero Advocates v National Bank of Kenya Ltd
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal because the complaining party's own lawyer had approved the order, so they couldn't later complain about it.
What this practically means
#Executive summary
#Key legal issues
#Estoppel arising from approval of a draft order by a party's advocate
An advocate who approves an order as drawn cannot later challenge its validity when the appeal founded on it comes up for hearing; the client is estopped by that conduct.
The draft order was sent to the applicant's counsel on 20th June 2006 and approved. Counsel, as an officer of the court, should not approve a wrongly drawn order and later challenge its validity. Adopting the Court of Appeal for Eastern Africa's reasoning in Sonko v Patel, approval without reservation is an express representation that the order is correct in form and substance; it would be unjust to allow approbation and reprobation. Two defective grounds were in any event abandoned, and no prejudice was alleged.
Incorporation of two orders in one extracted order
Although the complaint was not altogether invalid, the defect did not justify striking out the appeal where the party complaining had approved the order and suffered no prejudice.
The court accepted that the extracted order wrongly combined an order granting leave to appeal with a 14-day stay of execution granted after the ruling. However, the draft was approved by the applicant, the applicant did not dispute the approval by affidavit, and no prejudice was shown. The Court of Appeal for Eastern Africa in Air Alfaraj and Sonko v Patel was applied. Striking out was described as a draconian step not warranted on these facts.
Legal principles established
#- A party who approves an order as drawn is estopped by that conduct from later questioning the form or substance of that order in the appeal; counsel may not approbate and reprobate.
- Striking out an appeal is a draconian action that should not be taken where no prejudice is alleged and defects are technical or curable.
Court orders
#- 1.The notice of motion dated 24th July 2006 is dismissed with costs to the respondent
- 2.Civil Appeal No. 158 of 2006 shall proceed to hearing
- 3.The application to vacate the order of stay of execution granted on 21st July 2006 in Civil Application No. 178 of 2006 is not granted
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C. Misc. Application No. 114 of 2004
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act and Court of Appeal Rules to strike out an incompetent appeal; application by notice of motion in a pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Behan & Okero Advocates v National Bank of Kenya Ltd", Case Analysis (2007). Civil Appeal (Appli.) 158 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/139/eng@2008-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.