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Court of AppealDismissedCivil Application NAI. No. 256 of 2019 (UR No. 235/2019)· [2019] KECA 118 (KLR)

Symposia Consult Limited v George Gikere Kaburu & 2 others [2019] KECA 118 (KLR)

Court of Appeal
22 November 2019
FSF. Sichale
611 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Court of Appeal threw out the company's extension request because its new lawyer failed to follow the required procedure for taking over the case after judgment.

What this practically means

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Executive summary

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This was an ex parte in-chambers ruling by Sichalet, JA in the Court of Appeal at Nairobi on a Notice of Motion dated 31st July 2019 by Symposia Consult Limited seeking extension of time to serve a Notice of Appeal and to file and serve the Memorandum of Appeal and Record of Appeal out of time, against the judgment of the Environment & Land Court at Thika (Ongondo, J) delivered on 14th June 2019 in Thika ELC Case No. 87 of 2010. The applicant explained the delay partly by the sickness of its Managing Director's wife and by the delay in its new counsel, Mwaniki Njuguna & Co. Advocates, receiving instructions on 16th July 2019, with a Notice of Appeal filed on 18th July 2019 and served on 22nd July 2019. The 1st respondent opposed, contending that the applicant was improperly before the court as a stranger to the proceedings, and that the sickness of one director's wife was no excuse since other directors could have given instructions. The court found, and counsel did not deny, that the applicant had been represented at the High Court by other counsel, so the incoming advocate was required to comply with Order 9 rule 9 of the Civil Procedure Rules before coming on record after judgment. That not having been done, the court held the non-compliance fatal, dismissed the motion with costs to the respondent, and noted that the 3rd respondent was deceased and the Attorney General's office did not attend despite service.

Key legal issues

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01

Effect of non-compliance with Order 9 rule 9 CPR on an extension-of-time application

Holding

Non-compliance with Order 9 rule 9 by the incoming advocate is fatal to the application; the advocate is improperly on record and the motion must be dismissed

Reasoning

The court held that where a party was previously represented by another advocate, a change of advocate after judgment requires either a court order on notice to all parties or a filed consent between the outgoing and incoming advocate. Since this was not denied and was not done, counsel was improperly before the court, leaving no discretion to entertain the motion despite sympathy for the applicant's circumstances.

p. 1

Legal principles established

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  • Where there is a change of advocates after judgment, the incoming advocate must first obtain a court order or file consent under Order 9 rule 9 of the Civil Procedure Rules before coming on record; failure to do so is fatal to a subsequent application by that counsel

Court orders

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  1. 1.The Motion dated 31st July 2019 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
On appeal from
Environment & Land Court at Thika
Thika ELC Case No. 87 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal; application for extension of time under the Court of Appeals procedural rules to file and serve appeal documents out of time

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, "Symposia Consult Limited v George Gikere Kaburu & 2 others [2019] KECA 118 (KLR)", Case Analysis (2019). Civil Application NAI. No. 256 of 2019 (UR No. 235/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/118/eng@2019-11-22

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