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Court of AppealDismissedCivil Application No. 1 of 2014· [2014] KECA 686 (KLR)

Cornel L. Shisanya v Irene Juliet Otinga & 8 others [2014] KECA 686 (KLR)

Court of Appeal
8 April 2014
HOH. OkwenguASAsike-MakhandiaFSF. Sichale
1,419 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 self-appointed 'agents' cannot represent litigants on appeal—only advocates, next friends, or guardians may appear.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Malindi in which Cornel L. Shisanya, purporting to act as 'recognized agent' of Mama Horoba Liyayi (mother of the deceased in Succession Cause No. 187 of 2008), sought an injunction, stay of consents and orders entered in the succession proceedings in the High Court at Mombasa, and a stay of those proceedings. Respondents objected through a preliminary point that the applicant, being neither a party nor an advocate, had no right of audience, and that no appeal or intended appeal existed. The court unanimously upheld the objection. It held that appellate proceedings are governed by the Appellate Jurisdiction Act and the Court of Appeal Rules, and Rule 22 permits appearance only in person, by an advocate, or, for persons under disability, by next friend or guardian ad litem; the rules contain no provision for a recognized agent. The constitutional avenue under Articles 22 and 258 was unavailable because no constitutional violation was alleged. The court also noted prior findings by a single judge in Civil Application No. 22 of 2013 that the applicant lacked locus standi and was a 'busy-body', and warned that obtaining powers of attorney to litigate on others' behalf is an abuse of process amounting to contempt. Independently, no notice of appeal had been filed, so the application could not in any event succeed. The application was dismissed with costs to the respondents, payable by the applicant personally.

Key legal issues

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01

Right of audience of a self-styled recognized agent before the Court of Appeal

Holding

The applicant, purporting to act as a recognized agent under Order 9 Rule 2 of the Civil Procedure Rules, had no right of audience because appellate proceedings are governed by the Appellate Jurisdiction Act and the Court of Appeal Rules, which provide only for appearance in person, by advocate, or for persons under disability by next friend or guardian ad litem.

Reasoning

The court held that the proceedings before it are governed exclusively by the Appellate Jurisdiction Act and the Court of Appeal Rules. Rule 22 permits a party to appear in person or by advocate, and a person under disability may appear through a committee, next friend or guardian ad litem. Order 9 Rule 2 of the Civil Procedure Rules, invoked by the applicant, has no application to appellate proceedings. The constitutional provisions on enforcement of rights (Articles 22 and 258) were inapplicable because no constitutional violation was alleged.

p. 3
02

Use of a power of attorney to obtain audience as an abuse of process

Holding

The applicant's practice of obtaining powers of attorney in a bid to represent parties in court was condemned as an abuse of process amounting to contempt of court for which he was liable to prosecution.

Reasoning

The court noted that the applicant had previously appeared in Civil Application No. 22 of 2013 pursuant to a power of attorney, where a single judge found him to lack capacity or locus standi, described him as a busy-body, and struck out his application. The court reiterated that finding and warned that misleading parties by obtaining a power of attorney to represent litigants is a serious abuse of the court process and contempt, exposing the applicant to prosecution.

p. 3
03

Jurisdiction where no notice of appeal has been filed

Holding

Even had the applicant been properly before the court, the application could not succeed because no notice of appeal had been filed either in the High Court or before the Court of Appeal.

Reasoning

An application for stay of execution and injunction in an intended appeal presupposes a pending or intended appeal evidenced by a filed notice of appeal. The court recorded that no notice of appeal existed, so there was nothing to support the interim relief sought. This rendered the application incompetent on an independent ground from the right-of-audience objection.

p. 3

Legal principles established

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  • Before the Court of Appeal, a person other than a litigant may appear only as an advocate, next friend or guardian ad litem; the Court of Appeal Rules make no provision for representation by a recognized agent.
  • Articles 22 and 258 of the Constitution permit one person to act on behalf of another only where there is an alleged or threatened contravention of the Constitution; they do not confer general audience rights in ordinary civil appeals.

Court orders

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  1. 1.The application is dismissed
  2. 2.The applicant is ordered to personally pay the costs of the respondents

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1 and 2
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43(1)
  • Court of Appeal RulesRule 47
  • Civil Procedure ActSection 3A
  • Court of Appeal RulesRule 25(3)
  • Court of Appeal RulesRule 22
  • Civil Procedure RulesOrder 9 Rule 2
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 159(1) & (2)
  • Appellate Jurisdiction Act
On appeal from
High Court of Kenya at Mombasa
Succession Cause No. 187 of 2008
Jurisdiction invoked
Appellate Jurisdiction Act and Court of Appeal Rules; the application invoked Order 40 Rules 1 and 2 of the Civil Procedure Rules 2010, Rules 41, 42, 43(1) and 47 of the Court of Appeal Rules and section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cornel L. Shisanya v Irene Juliet Otinga & 8 others [2014] KECA 686 (KLR)", Case Analysis (2014). Civil Application No. 1 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/686/eng@2014-04-08

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