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Court of AppealOtherCivil Application No. 336 of 2008 (consolidated with Civil Application No. Nai. 337 of 2008)· [2010] KECA 353 (KLR)

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)

Court of Appeal
25 March 2010
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on two consolidated applications (Nos. Nai. 336 and 337 of 2008) by Kamlesh Mansukhlal Damji Pattni under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution and stay of proceedings of exparte interlocutory mandatory injunctions granted by Lesiit, J. on 29th September 2008 in H.C.C.C. Nos. 570 and 571 of 2008, which had directed the removal of Gitari J. Njeu as receiver of Lake Baringo Lodge Limited and Lake Naivasha Country Club respectively. Before the applications were fully heard, the parties' advocates filed a consent letter dated 22nd September 2009 recording new boards of directors for the two companies and marking the applications as settled with no order as to costs. The Deputy Registrar recorded that consent on 23rd September 2009, but the extracted consent orders did not conform to it, and the advocates informally asked the court to record the fuller consent letter. The court held that its jurisdiction under Rule 5(2)(b) is confined to orders pending appeal; it could not make the final orders defining the boards of directors, since parties cannot confer jurisdiction by consent. It returned orders Nos. 1 and 2 of the consent letter to the parties to file in the superior court, and affirmed and endorsed the Deputy Registrar's order of 23rd September 2009 marking the applications as settled with no order as to costs. The binding rule is that consent cannot expand the court's limited Rule 5(2)(b) jurisdiction.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 4
02

The status of the interim exparte mandatory injunctions that were the subject of the stay applications

Holding

The exparte interlocutory orders had a limited duration and appear to have expired by effluxion of time

Reasoning

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.

p. 3
03

The effect of the unchallenged notice of change of advocates filed by Osoro Mogikoyo & Company Advocates

Holding

The court was bound by the notice of change until its validity was disputed by the party affected

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The order recorded by the Deputy Registrar on 23rd September 2009 affirmed as correct and endorsed as the order of the Court

Authorities

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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. 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

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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, "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.