Tatu City Limited, Kofinaf Company Limited, Nahashon Ngige Nyagah & Vimalkumar Bhimji Depar Shah v Stephen Jennings, Frances Holliday, Hans Jochum Horn, Pius Mbugua Ngugi, Frank Mosier, Anthony Njoroge & Christopher Barron (Civil Application 244 of 2015) (Civ) [2015] KECA 140 (KLR)
The bottom line
#Kenya's Court of Appeal let Tatu City companies withdraw an injunction application because their former lawyer no longer had instructions to pursue it.
What this practically means
#Executive summary
#Key legal issues
#Authority of advocates on record to pursue a notice of motion on behalf of corporate applicants
Where the boards of the two companies resolved that Havi & Co. Advocates had no instructions and appointed new advocates, the firm had no authority to prosecute the notice of motion filed on the companies' behalf.
The resolutions of 16th September 2015 were passed by all seven directors, including the 3rd and 4th applicants, appointing Ahmednasir M. Abdullahi, SC to manage the suits. Mr. Havi raised no challenge to those resolutions or to the appointment of the incoming advocates. A notice of motion filed about a week after those resolutions, on behalf of companies that had revoked the firm's instructions, was brought in contravention of the boards' directions and could not stand.
Severability of a joint application where individual directors claim personal interests
The notice of motion was a single indivisible application brought for the benefit of the two companies; the 3rd and 4th applicants had no personal claims, so leave to withdraw extended to the entire application.
The court found that the suit and the applications concerned the internal affairs of the two companies - appointment of directors, removal of the chairman and change of bank signatories - and not any personal wrongs to the 3rd and 4th applicants. Although named as parties, they were in reality litigating on behalf of the companies. Since the application was not severable, withdrawal of the companies' application necessarily carried the whole motion.
Whether the Court should determine contested questions of authority and the directors' disputes
The Court declined to determine whether Havi & Co. had instructions to institute the High Court suit or to resolve the disputes among the directors, as those matters were before the High Court and not directly relevant to the withdrawal application.
The court held that the question whether the firm had instructions to file the High Court suit was being litigated in the High Court and expressing a view would embarrass that court. The disputes amongst the directors would only have been relevant had the court been determining the pending notice of motion on its merits. The court therefore confined itself to the narrow question of withdrawal under Rule 52.
Legal principles established
#- Rule 52 of the Court of Appeal Rules permits an applicant to apply informally to the Court for leave to withdraw an application.
- An appellate court will not express a view on issues being litigated before the High Court that would embarrass that court.
- Counsel acting without instructions from the corporate litigant cannot maintain an application brought on the company's behalf, and where a joint application is indivisible, leave to withdraw extends to the entire application.
Court orders
#- 1.Leave granted for withdrawal of the entire application
- 2.The notice of motion dated 24th September 2015 and filed on 25th September 2015 withdrawn under rule 52 with no orders as to costs
- On appeal from
- High Court of Kenya at Nairobi (Commercial and Admiralty Division)
- H.C.C.C. No. 46 of 2015
- Jurisdiction invoked
- Rule 52, Court of Appeal Rules 2010 (informal application for leave to withdraw a notice of motion filed in support of an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tatu City Limited, Kofinaf Company Limited, Nahashon Ngige Nyagah & Vimalkumar Bhimji Depar Shah v Stephen Jennings, Frances Holliday, Hans Jochum Horn, Pius Mbugua Ngugi, Frank Mosier, Anthony Njoroge & Christopher Barron (Civil Application 244 of 2015) (Civ) [2015] KECA 140 (KLR)", Case Analysis (2015). Civil Application No. NAI 244 of 2015 (UR 203/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/140/eng@2015-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.