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 AppealDismissedCivil Application No. 55 of 2020· [2020] KECA 108 (KLR)

Amigos Nuts and Commodities Limited v Kam Hung Tsui [2020] KECA 108 (KLR)

Court of Appeal
4 December 2020
ASAsike-MakhandiaMUMusingaMUMurgor
1,779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed a company's bid to halt enforcement of a Kshs 10.7 million judgment, confirming documents filed by advocates without valid practising certificates remain valid.

What this practically means

#

Executive summary

#
The applicant sought stay of execution of a High Court judgment (L.W. Gitari, J.) dated 11th May 2020 ordering specific performance of a contract, requiring it to return goods worth USD 107,896 (equivalent to Kshs.10,789,600) and to meet transport, clearance and duty costs. The respondent raised a preliminary objection contending that the applicant's pleadings and affidavits, drawn by an advocate without a current practising certificate, were incompetent, and that the motion was wrongly anchored on Order 26 rule 2 of the Civil Procedure Rules and sections 1A and 1B of the Civil Procedure Act. The Court overruled the preliminary objection, associating itself fully with the Supreme Court's decision in National Bank Limited v Anaj Warehousing Limited and this Court's decision in Peterson Ndung'u v Kenya Power & Lighting Company, to the effect that pleadings and documents do not become invalid merely because they were prepared by an advocate without a current practising certificate; only documents prepared by non-advocates or advocates struck off the roll are void. On the merits of the stay application, the Court found the applicant had not satisfied the twin limbs of rule 5(2)(b) of the Court of Appeal Rules: arguability of the intended appeal was doubtful, and it was not demonstrated that the respondent would be unable to refund the decretal sum if the appeal succeeded. The Court also agreed with the High Court's handling of the arithmetic discrepancy in the award under Section 100 of the Civil Procedure Act. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Validity of pleadings filed by an advocate without a current practising certificate

Holding

The court associated itself with the Supreme Court's decision in National Bank Limited v Anaj Warehousing and the Court of Appeal's decision in Peterson Ndung'u, holding that such pleadings are not invalid and should not be struck out

Reasoning

Following the Supreme Court in Anaj Warehousing and this Court in Peterson Ndung'u, the court held that public policy and the new constitutional ethos weigh against penalising innocent clients who reasonably believed their advocate was duly qualified. The statute does not expressly invalidate such documents. Only documents prepared by non-advocates or advocates struck off the roll are void.

p. 2
02

Whether the applicant satisfied the twin limbs of rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant failed on both limbs; arguability of the intended appeal was doubtful and no nugatory-ness was demonstrated since the respondent could refund the decretal sum

Reasoning

The court found that arguability of the appeal was doubtful, and even if arguable, the applicant did not show that the respondent would be unable to refund the decretal sum if the appeal succeeded. Execution had also been overtaken by events, as the warrant of attachment was returned to the High Court unexecuted after an unsuccessful public auction.

p. 3
03

The alleged error in awarding USD 107,896 instead of the USD 104,536.20 pleaded

Holding

The High Court judge correctly exercised her discretion under Section 100 of the Civil Procedure Act to address the calculation error, which was not fatal or prejudicial

Reasoning

The impugned judgment showed the learned judge expressly addressed the calculation error raised in submissions, holding it was not fatal and could not prejudice the defendant, and that the court had discretion to amend such errors under Section 100 of the Civil Procedure Act. The Court of Appeal respectfully agreed with that approach.

p. 3

Legal principles established

#
  • Pleadings, documents or submissions drawn and filed by an advocate who does not possess a current practising certificate are not thereby invalid and should not be struck out on that ground alone, save for documents prepared by non-advocates or advocates struck off the roll
  • An applicant for stay of execution under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory unless stay is granted

Court orders

#
  1. 1.The preliminary objection raised by the respondent was overruled
  2. 2.The applicant's notice of motion dated 16th June 2020 seeking stay of execution was dismissed
  3. 3.Costs of the application were awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 26 rule 2
  • Civil Procedure RulesOrder 45 rules 1 and 2
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 100
  • Court of Appeal RulesRule 5(2)(b)
  • Advocates ActSection 31
  • Advocates ActSection 34

Cases cited (5)

  • Mukhisa Biscuit Company v West End Distributors Ltd
    [1969] EA 696
  • National Bank Limited v Anaj Warehousing Limited
    [2015] eKLR
  • Peterson Ndung'u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd
    [2018] eKLR
  • R V Resident Magistrate's Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna & 9 Others
    [2016] eKLR
  • Wilson Ndolo Ayah Case
On appeal from
High Court of Kenya at Kerugoya
H.C.C. Case No. 6 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Amigos Nuts and Commodities Limited v Kam Hung Tsui [2020] KECA 108 (KLR)", Case Analysis (2020). Civil Application No. 55 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/108/eng@2020-12-04

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