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Court of AppealDismissedCivil Appeal No. 47 of 2017

Stephen Mbogo Karuiki v K- Rep Bank Ltd [2018] KECA 558 (KLR)

Court of Appeal of Kenya
24 May 2018
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant had guaranteed loan facilities advanced by K-Rep Bank Ltd to two companies and charged his Mombasa parcel as security. When the bank advertised the property for auction in May 2014, he sued in the High Court seeking a permanent injunction and an order for a statement of account. A striking-out application by the bank was compromised by consent on condition that the bank render a statement of account. On 15th March, 2017, after the statements were supplied, both advocates told Otieno, J. that no issue remained pending, and the Judge marked the suit as adjusted with each party bearing its own costs. The appellant subsequently instructed new advocates, who filed a notice of change and an application for review and setting aside of that order. The High Court struck out the review application on the ground that, the orders of 15th March, 2017 having terminated the suit, the incoming advocates had to comply with Order 9 rule 9 and had not done so. The appellant appealed on two grounds: the striking out, and the holding that the adjustment order terminated the suit. The Court of Appeal confined itself to the striking-out issue, holding that the 15th March order disposed of the entire suit, so the incoming firm was bound by Order 9 rule 9; since no application, consent or court order sanctioned the change, the review application was improperly before the court. The appeal was dismissed with costs. The decision affirms that advocates coming on record after final disposal must strictly comply with Order 9 rule 9, and this binds subordinate courts and the High Court.

Key legal issues

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01

Whether the order of 15th March, 2017 marking the suit as adjusted amounted to a final disposal triggering Order 9 rule 9

Holding

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.

Reasoning

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.

p. 3
02

Whether the review application was properly before the High Court despite the advocate not being properly on record

Holding

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.

Reasoning

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.

p. 3
03

Whether the propriety of marking the suit as adjusted was before the appellate court

Holding

The propriety of the adjustment order was not an issue before the Court; the sole crux was the striking out of the review application.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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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, "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.