Oscar Githanji Mburu v Faith Githongo & another [2021] KECA 752 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that its own rules, not the Civil Procedure Rules, govern how advocates change representation when filing an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a Notice of Appeal filed by an advocate who came on record after judgment without first obtaining leave of the High Court under Order 9 rule 9 of the Civil Procedure Rules, 2010 should be struck out
- 2.Whether the Civil Procedure Rules apply to proceedings in the Court of Appeal on change of advocates
- 3.Whether Article 159 of the Constitution (substantive justice over technicality) defeats the striking-out application
Key legal issues
#Whether Order 9 rule 9 of the Civil Procedure Rules applies to change of advocates in the Court of Appeal
It does not. The Court of Appeal has its own rules, particularly rule 23 of the Court of Appeal Rules, governing representation of parties before it, and the Civil Procedure Rules are inapplicable to this Court.
The court adopted the reasoning in Mary Nchekei Paul v Francis Mundia Ruga, where Musinga, JA held that the Court of Appeal has its own rules of procedure and the Civil Procedure Rules provisions are inapplicable. Rule 23 of the Court of Appeal Rules sets out the procedure for representation of a party in the Court by an advocate or in person, displacing the High Court's leave requirement under Order 9 rule 9.
Whether the subsequent grant of leave by the High Court cured any defect in filing the Notice of Appeal
Yes. The incoming firm of Tess Kimotho & Company Advocates applied to the High Court and were granted leave to come on record, and an application for stay filed by that firm was entertained by the High Court, so the objection was overtaken by events.
The court found that the advocates who filed the Notice of Appeal thereafter applied to the High Court which granted them leave to appear, and their application for stay was entertained. Reinforcing the dismissal, Article 159 of the Constitution frowns at a technical approach to dispute resolution.
Legal principles established
#- The Civil Procedure Rules do not govern change of advocates in the Court of Appeal; that Court has its own rules
- A Notice of Appeal is not struck out merely because the advocate who filed it had not, at the time of filing, obtained leave under Order 9 rule 9 of the Civil Procedure Rules to come on record after judgment
Court orders
#- 1.The Motion to strike out the Notice of Appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kerugoya
- H.C.C.A. No. 40 of 2017
- Jurisdiction invoked
- Rules 42 and 84 of the Court of Appeal Rules (inherent/appellate procedure rules of this Court)
Relief refused
#Striking out of the Notice of Appeal filed by the 2nd respondent on 29th May, 2020
The Court of Appeal has its own procedure on change of advocates; the Civil Procedure Rules do not apply to this Court, and the incoming advocates subsequently obtained leave of the High Court to come on record
Costs
Costs of the Motion to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court has its own rules of procedure, the Court of Appeal Rules, and the cited provisions of the Civil Procedure Rules are therefore inapplicable.
The Constitution of Kenya, 2010, at Article 159, frowns at technical approach to dispute resolution.
The Motion fails on all fronts and is hereby dismissed with costs to the respondent.
Issues in the judgment
#The case Mary Nchekei Paul is cited by the respondents but the court expressly adopts its holding, yet the citation is attributed to the parties' submissions; treatment may be argued to be 'followed' rather than merely 'cited_by_party'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oscar Githanji Mburu v Faith Githongo & another [2021] KECA 752 (KLR)", Case Analysis (2021). Civil Application No. 60 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/752/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.