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Court of AppealPartially AllowedCivil Appli 29 of 2007· [2009] KECA 401 (KLR)

ALI K. AHMED T/A SKY CLUB RESTAURANT v KABUNDU HOLDINGS LIMITED [2009] KECA 401 (KLR)

Court of Appeal of Kenya
23 January 2009
ROR. S. C. OmoloJOJ. W. Onyango OtienoDAD. K. S. Aganyanya
1,210 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out both a late notice of appeal and an application filed by an advocate without a valid practising certificate, leaving costs to each side.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Mombasa (Omolo, Onyango Otieno and Aganyanya, JJA) dealt with an application by Ali K. Ahmed t/a Sky Club Restaurant to strike out a notice of appeal lodged by Kabundu Holdings Limited against a ruling of Maraga J delivered on 6th September 2005 in High Court Civil Appeal No. 82 of 2004, in which Maraga J had held that Patrick Mukiri Kabundu had no locus standi to act for the respondent company. The application, filed by the firm of Oyoo and Company Advocates, asserted that the notice of appeal breached the rules, was lodged out of time, and was an abuse of process. The respondent did not dispute that the notice was filed out of time without leave, but countered that the motion itself was incompetent because Mr Oyoo held no practising certificate at the relevant time, relying on a decision of Njagi J in Civil Suit No. 259 of 2006. Applicant's counsel's claim of a 2007 licence was unsupported by any evidence. The court agreed and struck out the applicant's motion as incompetent. The court then acted suo motu: rule 74(2) required lodgement within fourteen days, yet the notice was lodged about 49 days late with no leave granted, so the notice of appeal was struck out. The court made no order as to costs of either the application or the striking out, and expressly preserved the respondent's right to pursue any pending application or appeal for extension of time. The Maraga J ruling itself was not disturbed.

Key legal issues

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01

Competence of proceedings filed by an advocate without a practising certificate

Holding

The notice of motion filed on behalf of the applicant by Oyoo and Company was incompetent because Mr Oyoo held no practising certificate at the relevant time; allegations of a 2007 licence made from the bar, unsupported by evidence, could not displace a decision of Njagi J between the same parties covering the relevant period.

Reasoning

Counsel for the applicant asserted that a practising licence covering 2007 existed but could not produce it or swear an affidavit to that effect. Submissions made from the bar carry no evidential weight. A decision of Njagi J in Civil Suit No. 259 of 2006 between the same parties established that Mr Oyoo had no licence during the relevant period. The court therefore could not act on the motion and struck it out.

p. 2
02

Striking out a notice of appeal lodged out of time without leave

Holding

Under rule 74(2) the notice of appeal should have been lodged within fourteen days of the ruling of Maraga J, i.e. by 20th September 2005; it was lodged about 49 days later, and no leave for extension had been obtained, so the court struck it out suo motu.

Reasoning

The respondent conceded the notice of appeal was filed out of time without leave. Its application in the superior court for extension or validation had been dismissed, confirming that no leave existed at the date of the hearing. The court held it had a duty to act suo motu where a document was filed out of conformity with its Rules, and struck out the notice of appeal while preserving the respondent's right to pursue extension of time.

p. 2

Legal principles established

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  • Pleadings and documents filed by an advocate who does not hold a practising certificate at the relevant time are incompetent and cannot be acted upon by the court.
  • A notice of appeal must be lodged within fourteen days of the decision appealed from under rule 74(2) of the Court of Appeal Rules, and the court may act suo motu to strike out a notice of appeal lodged out of time without leave.
  • Striking out a notice of appeal filed out of time does not bar the party from separately pursuing an application for extension of time.

Court orders

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  1. 1.The applicant's notice of motion dated 5th February 2007 is struck out as incompetent for having been filed by an advocate without a practising certificate
  2. 2.The notice of appeal dated 7th November 2005 and lodged on 8th November 2005 arising from the ruling of Maraga J dated 6th September 2005 in Mombasa High Court Civil Appeal No. 82 of 2004 is struck out suo motu
  3. 3.No order as to costs of the application struck out and no order as to costs of striking out the notice of appeal on the court's own motion
  4. 4.The striking out does not prevent the respondent from pursuing any pending application or appeal for extension of time
On appeal from
High Court of Kenya at Mombasa
H.C.C. Appeal No. 82 of 2004
Jurisdiction invoked
Inherent supervisory jurisdiction over its own process under the Court of Appeal Rules, including rule 74(2) on the time for lodging notices of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "ALI K. AHMED T/A SKY CLUB RESTAURANT v KABUNDU HOLDINGS LIMITED [2009] KECA 401 (KLR)", Case Analysis (2009). Civil Appli 29 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/401/eng@2009-01-23

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