K & K Amman Limited v Mount Kenya Game Rach Limited & 3 others
The bottom line
#Kenya's Court of Appeal refused to reinstate a dismissed appeal because the company waited four months and never formally notified the court of an advocate change.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was prevented by sufficient cause from appearing when the appeal was called on
No sufficient cause shown; the advocates on record were duly served and the protest on the hearing notice was of no effect absent Rule 23 compliance
The Court held that withdrawal of instructions without a Rule 23 notice left the former firm technically on record. The protest endorsement on the hearing notice could not avail the applicant vis-à-vis the Court and other parties. The applicant also failed to evidence the alleged loss of the court file and meetings with the Registrar.
Whether the application was filed within the prescribed 30-day period
It was not; the application was filed four months after the applicant allegedly first learned of the dismissal, an inordinate and unexplained delay
Rule 102(3) requires restoration applications within thirty days of the decision or of first hearing of it. The applicant claimed first knowledge on 8th December 2010 but filed on 13th April 2011. The delay was inordinate, unexplained and prejudicial to the respondents.
Whether Section 3A of the Civil Procedure Act applies in the Court of Appeal
It does not; the Court noted the application was expressed to be brought under Section 3A which is not applicable in this Court
The applicant invoked Section 3A of the Civil Procedure Act together with Rules 23(1) and 102(1) of the Court of Appeal Rules 2010. The Court expressly observed that Section 3A does not apply in the Court of Appeal, resting instead on the Rules.
Legal principles established
#- A party who changes advocates, or an advocate ceasing to act, must comply with Rule 23 by lodging and serving a notice of change or obtaining leave to cease acting; until then the former advocate remains on record.
- The onus of showing sufficient cause for reinstatement of a dismissed appeal lies on the applicant, and each application is decided on its peculiar circumstances.
- A restoration application must be made within thirty days of the decision, or of first hearing of the decision where the party was not served with hearing notice.
Court orders
#- 1.The application for reinstatement of the dismissed appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- High Court Civil Suit No. 6076 of 1993
- Jurisdiction invoked
- Inherent/appellate jurisdiction under the Court of Appeal Rules 2010 (Rules 23, 99(1) of the repealed Rules and 102(1)); Section 3A Civil Procedure Act invoked by applicant but held inapplicable in this Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "K & K Amman Limited v Mount Kenya Game Rach Limited & 3 others", Case Analysis (2014). Civil Appeal (Application) 120 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/866/eng@2014-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.