Kamlesh Mansukhlal Damji Pattni v Lake Baringo Lodge Limited, Gitari T. Njeu & Kenya Hotels Limited (Civil Application 336 & 337 of 2008) (Civ) [2010] KECA 353 (KLR)
The bottom line
#The Court of Appeal confirmed that even when parties agree by consent, it cannot make final orders on a Rule 5(2)(b) application — only orders pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal could, on a Rule 5(2)(b) application, record final consent orders defining boards of directors of the respondent companies
It could not; such orders are final and not pending-appeal orders, so the consent letter as to those orders was returned to the superior court
The court distinguished its limited Rule 5(2)(b) jurisdiction, which is confined to preserving the subject matter of an intended appeal pending appeal, from its appellate jurisdiction where it may make orders the superior court could have made. Orders Nos. 1 and 2 resolved the underlying management dispute and there was no indication an appeal would be filed. Parties cannot confer jurisdiction by consent, so the consent of the advocates could not expand the court's power.
The status of the interim exparte mandatory injunctions that were the subject of the stay applications
The exparte interlocutory orders had a limited duration and appear to have expired by effluxion of time
The orders under review were exparte temporary orders made pending the hearing of the applications inter partes, with a limited duration, though extended from time to time. The court observed they had seemingly lapsed, making the stay applications practically moot and supporting the consensual marking of the applications as settled.
The effect of the unchallenged notice of change of advocates filed by Osoro Mogikoyo & Company Advocates
The court was bound by the notice of change until its validity was disputed by the party affected
Although Mr. Ochieng' later swore an affidavit opposing the recording of the consent, complaining of non-service of the notice of change and alleging fraud, the affidavit was filed long after the consent had been recorded, and no party challenged the validity of the change of advocates. The notice therefore stood and the advocates who executed the consent letter had authority to do so.
Legal principles established
#- On an application under Rule 5(2)(b) the Court of Appeal can only make orders pending appeal and cannot make final orders that resolve the dispute in the superior court.
- Parties cannot by consent confer jurisdiction on the Court of Appeal which it does not have.
- A court is bound by a notice of change of advocates until its validity is challenged by a party.
Court orders
#- 1.The consent letter relating to orders Nos. 1 and 2 returned to the parties to file in the respective suits in the superior court
- 2.The order recorded by the Deputy Registrar on 23rd September 2009 affirmed as correct and endorsed as the order of the Court
- On appeal from
- High Court of Kenya at Milimani Commercial Courts, Nairobi
- H.C.C.C. No. 570 of 2008 and H.C.C.C. No. 571 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, "Kamlesh Mansukhlal Damji Pattni v Lake Baringo Lodge Limited, Gitari T. Njeu & Kenya Hotels Limited (Civil Application 336 & 337 of 2008) (Civ) [2010] KECA 353 (KLR)", Case Analysis (2010). Civil Application No. 336 of 2008 (consolidated with Civil Application No. Nai. 337 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/353/eng@2010-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.