Nicholas Omondi v A Rocha Limited [2016] KECA 140 (KLR)
The bottom line
#The Court of Appeal struck out an appeal application because the new law firm never filed a notice of change of advocates and the delay was never properly explained.
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 firm of J.M. Njenga & Co. Advocates is properly on record for the applicant without filing a notice of change of advocates
- 2.Whether leave should be granted to file and serve the Notice of Appeal out of time, or to have the Notice of Appeal dated 12th October 2015 deemed duly filed and served
- 3.Whether the delay in filing the application was inordinate and satisfactorily explained
Key legal issues
#Whether a notice of change of advocates is required when a new firm takes over after a notice of appeal has been filed
Yes - the firm of J.M. Njenga could only come on record by filing a notice of change of advocate; without it the application was incompetent and was struck out.
The court adopted the reasoning of Okwengu, JA in Kenya Agricultural Research Organization v Stephen Ngaruiya Kanyanja: appeal proceedings are separate proceedings requiring fresh instructions, but where an advocate is already appearing in the appeal (L. Wahome having filed the notice of appeal), a new firm may come on record only by notice of change of advocates under Rule 23(1).
Whether the delay of about four months in filing the extension application was excusable
No - the applicant's explanation (identifying new counsel and financial constraints) was unsatisfactory; the stated 18-day delay was inaccurate.
The court found the applicant's computation of 18 days unreliable and the reasons - searching for alternative counsel and financial constraints - insufficient to explain a delay of about four months from the notice of appeal to the application.
Whether failure to write a letter requesting typed proceedings to the Deputy Registrar was excusable
No - contrary to the supporting affidavit, no such letter was written; only a letter for a certified copy of the judgment was written, so there was no satisfactory explanation.
Following Harry Njai v Gasper Walele, an appeal not yet filed is hopelessly out of time unless, within 30 days of judgment, a letter bespeaking proceedings is written to the Deputy Registrar and served on the other party. The applicant's counsel's inadvertent omission was not accepted as sufficient cause.
Legal principles established
#- Once a notice of appeal has been filed by an advocate, a notice of change of advocate must be filed if new counsel is to take over conduct of the matter; failure renders subsequent pleadings by the new firm incompetent.
- An applicant for extension of time must satisfactorily explain the delay and comply with the requirement of writing to the Deputy Registrar requesting typed proceedings and serving the letter on the respondent; failure means the notice of appeal serves no useful purpose.
Court orders
#- 1.The amended Notice of Motion dated 10th May 2016 be and is hereby struck out and dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated (Nairobi High Court Succession Cause No. 361 of 2003 referenced)
- Jurisdiction invoked
- Rule 47(1) of the Court of Appeal Rules (extension of time) read with Sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Leave to file and serve Notice of Appeal out of time / deeming of the Notice of Appeal dated 10th September 2015
Application incompetent for want of notice of change of advocate; no satisfactory explanation for the delay and failure to request typed proceedings
Costs
The amended Notice of Motion dated 10th May 2016 be and is hereby struck out and dismissed with costs (costs to the 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.
The final order is that the amended Notice of Motion dated 10th May 2016 be and is hereby struck out and dismissed with costs.
In my view, once a notice of appeal has been filed by an advocate, a notice of change of advocate must be filed if a new counsel is to take over the conduct of the matter.
Failure to file the notice of change renders the amended notice of motion dated 10th May 2016 to be incompetent and not properly on record.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
the applicant has not given a satisfactory explanation why a letter requesting for proceedings was never written to the Deputy Registrar.
Issues in the judgment
#Supporting affidavit dated 11th January 2015 marked '(sic)' - applicant's documents bear an apparently erroneous year given the motion was filed 13th January 2016
The Notice of Appeal is described as dated 10th September 2015 in the application but 12th October 2015 in the body of the judgment and in counsel's submissions
Judgment states it was delivered on 10th September 2015 in grounds of application but on 11th September 2015 in the opening paragraph
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Omondi v A Rocha Limited [2016] KECA 140 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/140/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.