Shaba Trustees Limited v Rose Njoki King’au & 2 others [2016] KECA 440 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill a stalled six-year-old appeal because the litigants' lawyers had been struck off, but made them pay costs for not following up.
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 notice of appeal filed by the 1st and 2nd respondents on 30th April 2010 should be struck out under rule 84 of the Court of Appeal Rules on the ground that no essential step in the proceedings was taken within the prescribed time
- 2.Whether the stay of execution granted in Civil Application No. NAI 111 of 2010 should be set aside or discharged
- 3.Whether, in the interest of justice and under the overriding objective, the 1st and 2nd respondents should be shut out for the inordinate delay occasioned by the striking off and suspension of their former advocates
Key legal issues
#Whether an inordinate delay caused by an advocate's striking off or suspension justifies striking out a notice of appeal under rule 84
No. The court dismissed the motion, invoking Article 159 of the Constitution and the overriding principle in Sections 3A & 3B of the Appellate Jurisdiction Act so as not to be fettered by technicalities
The notice of appeal had lain idle for some six years with no step taken to advance the appeal. The 1st and 2nd respondents explained that their advocates, Mutuli & Apopo, had been struck off and suspended from practice, facts of which they claimed ignorance. Balancing the inordinate delay against the interest of justice, and applying the overriding objective, the court declined to strike out the notice, holding the respondents should not be shut out of justice, but censured their lack of prudence on costs.
Whether the litigants' failure to monitor their advocates' suspension should affect costs
Yes. The court awarded costs of the motion to the applicant on account of the 1st and 2nd respondents' lack of prudence
Although the court declined to strike out the notice of appeal on substantive justice grounds, it noted that the respondents did not act prudently in failing to check on their counsel; had they done so, they would have discovered the advocates were no longer in practice. This lack of diligence in following up the appeal's progress was reflected in the costs order rather than in the substantive outcome.
Legal principles established
#- A party should not be shut out of justice merely because their former advocates were struck off or suspended from practice; the overriding objective and Article 159 favour determination on merits notwithstanding such default
- Although a party may be excused for their advocate's default, litigants are expected to exercise prudence in following up the progress of their appeal, which may bear on costs
Court orders
#- 1.The applicant's Notice of Motion dated 18th July 2011 seeking to strike out the notice of appeal is dismissed
- 2.Costs of the motion awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit No. 200 of 2007 (ruling in HCCC No. 986 of 2006)
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules, together with Sections 3A & 3B of the Appellate Jurisdiction Act (Chapter 9, Laws of Kenya) and Article 159 of the Constitution
Relief refused
#Striking out of the notice of appeal dated 30th April 2010
The court held that in the interest of justice, and under Article 159 of the Constitution and the overriding principle in Sections 3A & 3B of the Appellate Jurisdiction Act, the 1st and 2nd respondents should not be shut out of justice because their former advocates were struck off and suspended from practice
Setting aside or discharge of the stay of execution order made on 22nd October 2010 in Civil Application No. NAI 111 of 2010
The motion was dismissed in its entirety, so this relief was not granted; the judgment does not separately reason on it
Costs
Costs of the motion awarded to the applicant due to the 1st and 2nd respondents' lack of prudence in following up their appeal: "Due to the lack of prudence on the part of the 1st and 2nd respondents in following up the progress of their appeal, we shall award costs of this motion to the applicant. It is so ordered."
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.
it is important that the 1st and 2nd respondents are not shut out of justice because of their then advocates ceasing and/or being suspended from practice
in the interest of justice and considering the circumstances of the case, and in view of Article 159 of the Constitution and the overriding principle in Sections 3A & 3B of the Appellate Jurisdiction Act Chapter 9 of the Laws of Kenya and so as not to be fettered by technicalities, we are constrained to dismiss the motion
Due to the lack of prudence on the part of the 1st and 2nd respondents in following up the progress of their appeal, we shall award costs of this motion to the applicant. It is so ordered.
Issues in the judgment
#Internal date inconsistencies: the motion is described as arising from a Ruling dated 29th April 2011, but the deponents and the court repeatedly refer to the ruling as delivered on 29th April 2010, and the stay order is variously dated 22nd October 2010 and 30th October 2000
The notice of appeal is described as dated 30th April 2010 and filed on 5th May 2010 in one passage, whereas the motion describes it as filed on 30th April 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shaba Trustees Limited v Rose Njoki King’au & 2 others [2016] KECA 440 (KLR)", Case Analysis (2016). Civil Application No. NAI 187 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/440/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.