Stephen Mbogo Karuiki v K- Rep Bank Ltd [2018] KECA 558 (KLR)
The bottom line
#The Court of Appeal confirmed that a new advocate cannot act in a concluded Kenyan case without first getting court permission or filing a consent to take over.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 15th March, 2017 marking the suit as adjusted amounted to a final disposal triggering Order 9 rule 9
The order both marked the suit as adjusted and recorded that nothing remained for determination, which amounted to disposal of the entire suit; any subsequent change of advocate therefore required Order 9 rule 9 compliance.
The Court read the Judge's order of 15th March, 2017 as doing two things: marking the suit as adjusted and holding that nothing remained for determination. Taken together these had the effect of disposing of the entire suit. Once the suit was fully determined, the incoming firm of Joseph Gathuku & Company Advocates could only come on record upon a court order under Order 9 rule 9(a) or a consent under rule 9(b). Since neither was obtained, the notice of change was ineffective and the review application anchored on it was improperly on record.
Whether the review application was properly before the High Court despite the advocate not being properly on record
Having failed to obtain the court order or file the consent envisaged by Order 9 rule 9, the incoming advocates could not validly institute the review application, and its striking out was correct.
It was not disputed that Joseph Gathuku & Company Advocates neither filed an application with notice to all parties nor obtained a consent between the outgoing and incoming advocates as required by Order 9 rule 9. Nor had the change been sanctioned by a court order. The Court therefore concurred with the High Court that the review application was improperly before the court and that the Judge was right to strike it out with costs.
Whether the propriety of marking the suit as adjusted was before the appellate court
The propriety of the adjustment order was not an issue before the Court; the sole crux was the striking out of the review application.
The Court delimited the scope of the appeal. Although the appellant's submissions attacked the adjustment of the suit under Order 25 rule 5(1), the Court held that whether the Judge erred in marking the suit as adjusted was not an issue before it. The crux of the appeal was confined to whether the Judge erred in striking out the review application. This restricted framing meant the Court did not determine the validity of the adjustment order itself.
Legal principles established
#- Where an advocate comes on record after a suit has been fully determined, compliance with Order 9 rule 9 of the Civil Procedure Rules (by court order or filed consent) is mandatory before the change is effected; documents filed by a non-compliant incoming advocate are improperly before the court.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C No. 57 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the High Court ruling (appeal as of right under the applicable appellate framework; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Mbogo Karuiki v K- Rep Bank Ltd [2018] KECA 558 (KLR)", Case Analysis (2018). Civil Appeal No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/558/eng@2018-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.