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ELCDismissedApplication dated 11th January, 2016 (suit filed 10th May, 2013)· [2017] KEELC 3674 (KLR)

Tasmac Limited v Roberto Macri & 4 others [2017] KEELC 3674 (KLR)

Environment and Land Court
3 February 2017
OAO. A. Angote
2,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo a company's settlement because the new lawyers missed procedural steps and the man swearing affidavits had no valid authority.

What this practically means

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Executive summary

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The Applicant, Tasmac Limited, applied by notice of motion dated 11th January 2016 for setting aside of a consent order recorded on 16th September 2014, under which it acknowledged that Caledonia Limited held 52% of Nassau Limited's shares, named Roberto Macri and Ruggero Sciommeri as directors, and marked the cause settled with no orders as to costs. It also sought the enjoinment of Lydia Moraa Ondieki as an interested party and several temporary injunctions restraining the Respondents from denying access to Nassau Limited's properties, interfering with its shareholding, business and possession. The Applicant alleged the consent was entered into by fraud and collusion without its instructions, and that the Interested Party had fraudulently procured a power of attorney from Giancarlo Bottini to sell the Applicant's shares to the 2nd Respondent. The Respondents opposed, contending that no basis was laid to disturb the consent and that Matteo Bottini, who swore the supporting affidavits, lacked capacity to represent the Applicant. The court held that the consent, once adopted, became a final judgment, and the Applicant's new advocates, Anjarwalla & Khanna, had failed to comply with Order 9 rule 9 by obtaining leave or the previous advocates' consent to come on record, rendering the application incompetent. On the merits, the court found Matteo Bottini was neither a director nor authorised officer, and his unapproved, unregistered and unstamped power of attorney offended Section 19 of the Stamp Duty Act and was inadmissible. There was no evidence the previous advocate acted without instructions; Giancarlo Bottini, who signed the suit affidavit, should have sworn the affidavits himself. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicant's advocates were properly on record

Holding

The Application was incompetent because Anjarwalla & Khanna Advocates neither obtained leave of the court nor consent of the previous advocates to come on record after the consent judgment.

Reasoning

The consent of 16th September 2014 was adopted by the court and became final judgment. Under Order 9 rule 9 of the Civil Procedure Rules, a new firm coming on record after judgment must obtain leave of the court or the previous advocates' consent. Having failed to do so before filing the Application, the Application was bad in law and incompetent, though the court still went on to examine the merits.

p. 4
02

Whether Matteo Bottini could represent the Applicant

Holding

He was not an authorised officer and his unregistered, unstamped power of attorney could not be acted upon or received in evidence.

Reasoning

Order 9 rule 2 permits appearance by persons holding a power of attorney subject to court approval, or by an officer duly authorised under the corporate seal. Matteo was neither a director nor secretary, no evidence showed he was an officer, the power of attorney was never approved by the court, and being unstamped it offended Section 19(1) and (2) of the Stamp Duty Act and could not be received in evidence.

p. 5
03

Whether the consent order of 16th September 2014 was obtained by fraud and should be set aside

Holding

No evidence of fraud or lack of instructions; the court was satisfied the previous advocate had the Applicant's or Giancarlo Bottini's instructions.

Reasoning

The consent was entered by the Applicant's then advocate when the Interested Party had no authority to sell shares. Giancarlo Bottini signed the affidavit supporting the suit, so the advocate acted on his instructions. If instructions were absent, Giancarlo could easily have sworn an affidavit saying so; nothing showed the advocate acted contrary to express instructions. Giancarlo, not Matteo, should have sworn the affidavits given the serious allegations against the Interested Party.

p. 5

Legal principles established

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  • Once a consent is adopted by the court it becomes a final judgment, and a firm coming on record thereafter must comply with Order 9 rule 9
  • A power of attorney relied on for representation must be approved by the court, registered and stamped, failing which it is inadmissible

Court orders

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  1. 1.The Application dated 11th January 2016 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 9 rule 2(a) and (b)
  • Stamp Duty ActSection 19(1) and (2)
Jurisdiction invoked
Inherent jurisdiction of the court to set aside consent orders and Order 9 of the Civil Procedure Rules

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, "Tasmac Limited v Roberto Macri & 4 others [2017] KEELC 3674 (KLR)", Case Analysis (2017). Application dated 11th January, 2016 (suit filed 10th May, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3674/eng@2017-02-03

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