Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Application No. NAI 206 of 2017 (UR 162/2017)· [2018] KECA 599 (KLR)

Capital Market Authority v Institute of Certified Public Accountants of Kenya & 3 others [2018] KECA 599 (KLR)

Court of Appeal of Kenya
11 May 2018
GIGithinji
627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a party cannot have its application decided while unaware its lawyers had stopped acting, and ordered a fresh hearing.

What this practically means

#

Executive summary

#
This is a single-judge chambers ruling of the Court of Appeal at Nairobi by Githinji, JA, on Capital Markets Authority's notice of motion dated 28 August 2017 seeking extension of time to file and serve a notice of appeal out of time against the High Court judgment (Sergon, J., 28 June 2017, H.C.C.C. No. 1 of 2015), in which the High Court upheld a preliminary objection and struck out CMA's appeal against a decision of the Disciplinary Committee of the Institute of Certified Public Accountants of Kenya, holding that CMA had no right of appeal. When the application came up before Githinji, JA on 7 May 2018 the applicant's advocate was absent although served, and respondents sought dismissal for non-attendance under Rule 56(1) of the Court of Appeal Rules. The judge declined dismissal because written submissions had been filed and are permitted by the Court's Practice and Directions, and reserved the ruling. On perusal of the record, the judge discovered that at an earlier hearing before Sichale, JA the applicant's advocates, Muriu Mungai & Co., had intimated they ceased acting upon being appointed by the 1st respondent, though no formal application for leave to cease acting was filed. Holding it would be unjust to determine the application while the applicant, a regulatory authority with great interest in the dispute, was unaware and unrepresented and had not been heard, the judge remanded the ruling and directed that the application be heard de novo by another judge, with personal and timely service of the hearing notice on the applicant and service of a copy of the order. No costs order was made and the extension application itself remains undetermined.

Key legal issues

#
01

Whether the extension-of-time application could be decided when the applicant was effectively without representation

Holding

No; the court declined to determine the application and instead remanded it to be heard de novo by another judge with personal service on the applicant.

Reasoning

The applicant's then advocates had intimated they ceased acting upon being appointed by the 1st respondent, but no formal application for leave to cease acting was filed. The applicant was therefore unaware of this development, had not been given a chance to appoint new counsel or to be heard, and as a regulatory authority had great interest in the underlying dispute. Determining the application in those circumstances would be unjust.

p. 2
02

Whether non-attendance by the applicant warranted dismissal of the application under Rule 56(1)

Holding

No; the court declined to dismiss for non-attendance because written submissions had been filed, which are permitted by the Court's Practice and Directions, and directed that the application be heard on its merits.

Reasoning

Although the applicant's advocate was absent despite service of a hearing notice, and respondents sought dismissal under Rule 56(1), the single judge held that the filed written submissions are allowed by the Court's Practice and Directions, so the application should proceed on the merits rather than be struck out for non-attendance.

p. 2

Legal principles established

#
  • It is unjust to determine an interlocutory application where the applicant's advocates have in reality ceased acting without a formal application for leave to cease acting being filed, leaving the applicant unaware and without an opportunity to appoint another advocate or be heard.

Court orders

#
  1. 1.The ruling reserved on the application was remanded
  2. 2.The application to be heard de novo by another Judge
  3. 3.The hearing notice for the next hearing be served on the applicant personally and in good time
  4. 4.The Registrar to serve a copy of this order on the applicant

Authorities

#

Legislation

  • Court of Appeal RulesRule 56(1)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1 of 2015
Jurisdiction invoked
Rule 56(1) of the Court of Appeal Rules (application for extension of time to file and serve a notice of appeal out of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Capital Market Authority v Institute of Certified Public Accountants of Kenya & 3 others [2018] KECA 599 (KLR)", Case Analysis (2018). Civil Application No. NAI 206 of 2017 (UR 162/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/599/eng@2018-05-11

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