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Court of AppealOtherCivil Application No. NAI 65 of 2013 (UR 43/2013)· [2013] KECA 9 (KLR)

Nancy Wanja Gatabaki v Ashford Muriuki Mugwuku T/A Ashford & Co. Advocates [2013] KECA 9 (KLR)

Court of Appeal
19 April 2013
PKP.O. Kiage
1,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a lawyer can appear in an appeal without filing extra paperwork, and opponents can be heard on urgency without filing replies.

What this practically means

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Executive summary

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This was an interlocutory ruling delivered in chambers by Kiage JA on an application for stay of execution arising from a ruling of Havelock J of the High Court at Nairobi in Civil Suit No. 146 of 2012. Before the court could hear the applicant's certificate of urgency inter partes, the applicant's counsel raised a two-pronged objection to the respondent's counsel appearing: first, that having been served with a notice of appeal, he was obliged under Rule 79 of the Court of Appeal Rules to file and serve a notice of address for service within 14 days and had not done so; second, that having filed nothing in response to the certificate of urgency and supporting affidavit, he ought not to be heard. The respondent's counsel countered that there had been no change of advocates, that the High Court address of service continued to subsist, that the court was no longer a slave to technicality under Sections 3A and 3B of the Appellate Jurisdiction Act, and that no prejudice would be suffered. The court found the respondent's counsel properly before it, relying on Rule 49(2), which permits service at the address of service given in the superior court where no subsequent address has been given, and noting the inconsistency of the applicant objecting to counsel she had herself served. On the second objection, the court held that Rule 50 is permissive and not mandatory, and that a party may respond to a certificate of urgency without filing a replying affidavit. The objections were dismissed with costs to the respondent, and the registry was directed to give a priority date for the inter partes hearing on urgency. The stay application itself was not determined.

Key legal issues

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01

Whether failure to file a notice of address for service under Rule 79 after service of a notice of appeal disqualifies counsel from appearing

Holding

It does not. Rule 49(2) permits service at the address given in the superior court where no subsequent address for service has been filed, and the court declined to be fettered by procedural technicality.

Reasoning

The court identified Rule 49(2) as an express rule on point, permitting service at the advocate's address given in the superior court proceedings. The court also noted the applicant's inconsistency: she served the application on the very counsel she objected to, long after the 14-day period she relied upon had expired. Counsel had also invoked the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.

p. 2
02

Whether a respondent must file replying papers before being heard on a certificate of urgency

Holding

No. Rule 50 is permissive, and the hearing was on the certificate of urgency, not the notice of motion itself.

Reasoning

The court reasoned that Rule 50 governs affidavits in reply to a notice of motion, whereas what was before it was only the certificate of urgency, which it could determine on the basis of the record. It further observed that even substantive appeals require no responsive pleadings, so a fortiori none is needed on urgency. The respondent undertook to respond only on material placed on record by the applicant.

p. 3

Legal principles established

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  • A notice of motion may be served at the address of service given in the superior court where no subsequent address for service has been given, even where it is the address of an advocate retained for the subsequent proceedings (Rule 49(2))
  • Rule 50 of the Court of Appeal Rules, permitting affidavits in reply to a notice of motion, is permissive and not mandatory; a party cannot be barred from responding to a certificate of urgency merely for having filed no replying affidavit
  • A respondent may be heard before the Court of Appeal on the question of urgency without filing pleadings in reply or opposition

Court orders

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  1. 1.The objections raised by the applicant were dismissed with costs to the respondent
  2. 2.The parties were directed to take a date for inter partes hearing on the question of urgency, to be given by the registry on a priority basis

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 47(5)
  • Court of Appeal RulesRule 79
  • Court of Appeal RulesRule 49(2)
  • Court of Appeal RulesRule 50
  • Court of Appeal RulesRules 22 and 23 (referred to by respondent's counsel)
On appeal from
High Court at Nairobi (Milimani Commercial & Admiralty Division)
H.C. Civil Suit No. 146 of 2012
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules (application for stay of execution from the High Court), Sections 3A and 3B of the Appellate Jurisdiction Act referred to by counsel

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, "Nancy Wanja Gatabaki v Ashford Muriuki Mugwuku T/A Ashford & Co. Advocates [2013] KECA 9 (KLR)", Case Analysis (2013). Civil Application No. NAI 65 of 2013 (UR 43/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/9/eng@2013-04-19

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