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Court of AppealDismissedCivil Application No. NAI 298 of 2015 (UR 255/2015)· [2017] KECA 762 (KLR)

Peter Odiwuor Ngoge T/A O. P. Ngoge & Associates & Another v Jubilee Insurance Co. of Kenya Ltd & Another

Court of Appeal
17 February 2017
2,044 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 dismissed an advocate's bid to win KSh 200 million in damages and blocked lawyers from joining cases they argue as counsel.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nairobi (Karanja, Okwengu and G.B.M. Kariuki, JJA) determined a notice of motion dated 16th December 2015 by advocate Peter Odiwuor Ngoge and his client Daniel Maingi Muchiri against Jubilee Insurance Co. of Kenya Ltd and the insurer's advocates, Majanja Luseno & Co. Advocates. The motion sought to declare unconstitutional a High Court ruling (Sergon, J) of 6th November 2015 staying execution in H.C.C.C 195 of 2014, to stay that ruling, to grant leave to execute, to dissolve the respondent's law firm, and to award Shs. 200 million in damages. The underlying dispute concerned a decree of Shs. 802,233 arising from a motor accident claim in which the insurer's defence had been struck out. The court held that the application, though labelled a petition invoking Articles 22 and 258 of the Constitution, was in substance a notice of motion under rule 5(2)(b) of the Court of Appeal Rules; invoking fundamental rights did not change its interlocutory character, and the constitutionality of the impugned ruling could only be interrogated in the intended appeal. The court exercised its inherent power under rule 1(2) to expunge the advocate and his firm as 1st applicant and the insurer's advocates as 2nd respondent, holding that no law allows an advocate on record to be made a party, reprimanding the advocate's conduct as bizarre, unprofessional and an attempt to intimidate opposing counsel. Finding the applicant had failed to demonstrate that the intended appeal was arguable or would be rendered nugatory, the court dismissed the application with costs to the applicant.

Key legal issues

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01

Character of the application: motion or petition

Holding

The application is a notice of motion founded on rule 5(2)(b), not a petition; the rights-labelling does not alter its interlocutory character

Reasoning

The application was premised on the Appellate Jurisdiction Act and rule 5(2)(b) and sought orders pending determination of an intended appeal. Treating it as a petition would require the Court to interrogate matters not heard or determined in the High Court, which its appellate jurisdiction does not permit before the appeal is heard.

p. 3
02

Joinder of an advocate as a party

Holding

An advocate on record cannot be named as a party; the advocate's and the insurer's advocates' names were expunged and the conduct reprimanded

Reasoning

Neither the advocate nor his firm was a party or privy to the underlying suits or the High Court appeal. Naming himself as applicant and dragging the respondent's advocates into the proceedings was an abuse of process, unprofessional, and an attempt to embarrass and intimidate opposing counsel.

p. 3
03

Prematurity of constitutional determination at interlocutory stage

Holding

The constitutionality of the impugned ruling cannot be determined before the record is filed and the appeal heard

Reasoning

The impugned ruling is the subject of a notice of appeal; the issues raised will be interrogated during the hearing of the intended appeal. Seeking a constitutional determination at the interlocutory stage is an attempt to address the merits of the appeal prematurely.

p. 3
04

Rule 5(2)(b) merits

Holding

The application fails because the applicant did not address arguability of the appeal or nugatory-ness

Reasoning

Counsel failed to address the court on rule 5(2)(b), on which the application was predicated, and failed to show the orders were merited, that the intended appeal was arguable, or that it would be rendered nugatory absent the orders. The application was therefore devoid of merit and dismissed with costs.

p. 3

Legal principles established

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  • The invocation of fundamental rights does not change the character of an interlocutory application in an appeal; the Court of Appeal's power to interrogate breach of fundamental rights is anchored in its appellate jurisdiction
  • An advocate on record as counsel in a suit cannot be made a party to that suit
  • An advocate who is not a party to litigation is not entitled to plunge into the litigation as a party
  • The Court of Appeal has inherent power under rule 1(2) of its Rules to make orders preventing abuse of its process, including expunging improperly joined parties

Court orders

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  1. 1.The name of Peter Odiwuor Ngoge T/A O.P. Ngoge & Associates as 1st applicant is expunged from the proceedings
  2. 2.The name of Majanja Luseno & Co. Advocates as 2nd respondent is expunged from the proceedings
  3. 3.The application is dismissed with costs to be borne by the applicant

Authorities

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Legislation

  • The Insurance [Motor Vehicles Third Party Risks] Actsection 10
  • Appellate Jurisdiction Actsections 3, 3A and 3B
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 1(2)
  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 25, 27, 28, 29, 40, 43, 48, 50, 258
On appeal from
High Court of Kenya at Nairobi
H.C.C.C 195 of 2014
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act; rule 5(2)(b) of the Court of Appeal Rules; Articles 22 and 258 of the Constitution (invoked by applicants)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Odiwuor Ngoge T/A O. P. Ngoge & Associates & Another v Jubilee Insurance Co. of Kenya Ltd & Another", Case Analysis (2017). Civil Application No. NAI 298 of 2015 (UR 255/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/762/eng@2017-02-17

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