Channan Singh Chatthe & 5 others v Delphis Bank Limited (Now Oriental Commercial Bank Limited) [2011] KECA 261 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a counter-claim dismissed when a lawyer withdrew after losing key rulings could be appealed without special permission.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal and Civil Appeal No. 273 of 2008 should be struck out on the ground that no leave was granted to appeal against the dismissal of the appellant's counter-claim
- 2.Whether the counter-claim was dismissed under Order IXB Rule 4(1) of the Civil Procedure Rules (now Order 12 Rule 3(1)), which would have rendered the appeal one requiring leave
- 3.Whether the order dismissing the counter-claim was appealable as of right
Key legal issues
#Whether the dismissal of the counter-claim fell under Order IXB Rule 4(1) of the Civil Procedure Rules
The rule applies only to cases of non-attendance. Counsel for the bank had in fact attended the hearing but, following adverse rulings, withdrew; the counter-claim was therefore not dismissed under that rule and the superior court did not say so.
The court distinguished between non-attendance and attendance without prosecution. Miss Muriu was present when the trial judge ordered the bank to begin and later withdrew. Applying Mugachia vs Mwakibundu, which treated a counter-claim as an independent suit, the court held the dismissal was not under Order IXB Rule 4(1), so no leave to appeal was needed.
Whether withdrawal of counsel by reason of refusal of adjournment renders the proceedings ex parte
Following Din Mohamed vs Lalji Visram & Co., counsel's election to leave the court after refusal of an adjournment does not by itself make the proceedings ex parte; the remedy is to appeal.
The court's own research yielded Din Mohamed, where on further appeal it was held that a magistrate refusing an adjournment could proceed to hear the case and enter judgment, which was not an ex parte judgment, the remedy being appeal rather than application under Order IX Rule 24. That principle applies equally where counsel withdraws after adverse interlocutory rulings.
Legal principles established
#- Order IXB Rule 4(1) (now Order 12 Rule 3(1)) applies only where a party or counsel does not attend for hearing, not where counsel attends but fails to prosecute the suit or counter-claim; an order dismissing a counter-claim in such circumstances is appealable as of right and no leave is required
- Where counsel duly instructed, on being refused an adjournment, elects to leave the court and take no further part in the case, that fact alone does not constitute the proceedings ex parte
Court orders
#- 1.The application to strike out the notice of appeal and Civil Appeal No. 273 of 2008 is dismissed
- 2.Costs of the application to the appellant/respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 164 of 2003
- Jurisdiction invoked
- Rules 80 and 85(1) of the Court of Appeal Rules (application to strike out the record of appeal); the underlying appeal lies against an order of the High Court
Relief refused
#Striking out of the notice of appeal and Civil Appeal No. 273 of 2008
The application was misconceived because the counter-claim was not dismissed under Order IXB Rule 4(1); counsel had attended but failed to prosecute the counter-claim, so the order was appealable as of right without leave
Costs
The application is dismissed with costs to the appellant/respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the light of the foregoing, the application is misconceived. It is dismissed with costs to the appellant/respondent.
Accordingly the order dismissing the counter-claim was appealable as of right.
if a counsel duly instructed, on being refused an adjournment, elects to leave the court, and take no further part in the case, that fact alone does not constitute the proceedings ex parte
It is clear that Order IXB Rule 4 (1) (now Order 12 Rule 3 (1) applies in cases of non-attendance – that is where the plaintiff or his counsel does not attend for hearing of the case in contrast to cases where the plaintiff or his advocate has in fact attended the hearing of the suit but for one reason or another fails to prosecute the suit or counter-claim as the case may be as happened in the present case.
Issues in the judgment
#The judgment variously spells the case as 'Mugachia' and 'Magachia' ('That case was followed by this Court in Mugachia vs. Mwakibundu' but later 'The case of Magachia applies in the circumstances this case')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Channan Singh Chatthe & 5 others v Delphis Bank Limited (Now Oriental Commercial Bank Limited) [2011] KECA 261 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 273 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/261/eng@2011-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.