Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Application No. 9 of 2009· [2010] KECA 351 (KLR)

Ajay Kothari & 3 others v Marshalls (East Africa) Limited & 4 others [2010] KECA 351 (KLR)

Court of Appeal of Kenya
25 March 2010
EGE. M. GithinjiJOJ. W. Onyango OtienoDAD. K. S. Aganyanya
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed a consent order ending a stay application but refused to endorse a board-composition deal, sending it back to the High Court.

What this practically means

#

Executive summary

#
Marshalls (East Africa) Limited sued the Registrar of Companies and seven others in H.C.C.C. No. 743 of 2008, challenging their appointment as directors at a meeting convened by the Registrar. Joyce Khaminwa, J. granted exparte injunction orders on 15th December 2008 and, after dismissing a preliminary objection, extended them on 23rd December 2008. The four applicants filed a notice of appeal and then this application under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of the order extending the injunction and a stay of proceedings in the suit pending an intended appeal. Before the application could be heard to conclusion, the company changed advocates and, on 22nd September 2009, the advocates for the parties executed a consent letter with two terms: first, that a named seven-member Board of Directors would manage the company's day-to-day affairs, and second, that the application be marked as settled with no order as to costs. The Deputy Registrar recorded the second term on 23rd September 2009. A former advocate later objected, alleging non-service and fraud. The Court held that it was bound by the unchallenged notice of change of advocates and that the objection came after the consent had been recorded. It declined to record the first consent term as an order of the Court, holding that it would be acting in excess of jurisdiction because that order neither related to the (now expired) exparte orders nor to the relief sought in the stay application; it belonged in the pending High Court suit and was returned for filing there. The Court confirmed the Deputy Registrar's order marking the application as settled, with no orders as to costs.

Key legal issues

#
01

Whether the Court could record the entire consent letter as orders of the Court

Holding

The Court declined to record the first order in the consent letter because it exceeded the Court's jurisdiction, as it did not relate to the exparte injunction orders or the relief sought in the stay application

Reasoning

The first order in the consent letter dealt with the composition of the company's Board of Directors and the management of the company. That subject matter belongs to the pending suit H.C.C.C. No. 743 of 2008, not to the application for stay. The exparte order which was the subject of the stay application had already expired by effluxion of time. Recording that order would therefore be acting in excess of jurisdiction.

p. 3
02

Validity of the consent order recorded by the Deputy Registrar

Holding

The order recorded by the Deputy Registrar on 23rd September 2009, marking the application as settled with no orders as to costs, was confirmed and endorsed as the correct order of the Court

Reasoning

The consent had been executed by the advocates of the respective parties and recorded by the Deputy Registrar before the opposing affidavit was filed. The objecting firm's challenge, based on alleged non-service and fraud, came too late and the notice of change of advocates had not been challenged. The Court therefore endorsed the Deputy Registrar's recorded order.

p. 3

Legal principles established

#
  • A court of appeal is bound by a notice of change of advocates on record until that notice is validly challenged by the party said to have appointed the new firm
  • A court cannot record a consent order touching matters outside the subject matter of the application before it; such an order must be filed in the suit in which the dispute is pending

Court orders

#
  1. 1.The first order in the consent letter is not recorded as an order of the Court and is returned for filing in H.C.C.C. No. 743 of 2008 in the High Court
  2. 2.The order recorded by the Deputy Registrar on 23rd September 2009 marking the application as settled is confirmed and endorsed as the correct order of the Court
  3. 3.The application is marked as settled with no orders as to costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
On appeal from
High Court of Kenya at Milimani Commercial Courts, Nairobi
H.C.C.C. No. 743 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ajay Kothari & 3 others v Marshalls (East Africa) Limited & 4 others [2010] KECA 351 (KLR)", Case Analysis (2010). Civil Application No. 9 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/351/eng@2010-03-25

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