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ELCStruck OutNot stated in the judgment (intended appeal against BPRT Case No. 130 of 2018, Mombasa)· [2019] KEELC 303 (KLR)

Marino Hardware Ltd v Frabhudas Chunilal & 3 others [2019] KEELC 303 (KLR)

High Court of Kenya at Mombasa
27 November 2019
CYC.K. Yano
1,239 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out an appeal attempt because the new lawyer filed papers after judgment without the court's required permission.

What this practically means

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Executive summary

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The court determined a preliminary objection dated 25th October 2019 raised by the respondents against the hearing of an intended appeal from the Business Premises Rent Tribunal Case No. 130 of 2018 (Mombasa, judgment delivered 26th July 2019) and against an application dated 17th October 2019 seeking leave to appeal out of time and stay of execution of the tribunal's judgment and decree. The respondents contended that the application, filed by the firm of Lawrence Obonyo Legal Advocates after judgment, breached Order 9 Rules 5, 9 and 12 of the Civil Procedure Rules, Section 5 of the Oaths and Statutory Declarations Act (the jurat stating Mombasa while commissioned by a Nairobi advocate) and Rule 9 of the Oaths and Statutory Declaration Rules (annexures not sealed or marked), relying on several eKLR authorities. The applicant's counsel argued the failure to file a notice of change of advocates was a curable irregularity under Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure Act. The court held Order 9 Rule 9 is couched in mandatory terms: no new advocate may take over a finally determined suit without leave or consent, and the application contained no prayer for leave which could be determined first under Order 9 Rule 10. The violation was not a mere technicality. Upholding the objection, the court struck out the application and all pleadings filed by Lawrence Obonyo Legal Advocates with costs to the respondents, declining to consider the remaining grounds as they went to merits.

Key legal issues

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01

Whether pleadings filed by an incoming advocate without leave after judgment are incompetent

Holding

They are incompetent and struck out; Order 9 Rule 9 is mandatory and the firm of Lawrence Obonyo Legal Advocates filed the application without authority, no notice of change of advocate having been filed

Reasoning

The court found the applicant was previously represented by Muthee Soni and Associates and judgment was entered by the tribunal. Under Order 9 Rule 9, a change of advocate after judgment requires a court order or consent. No prayer for leave to come on record was included, and Order 9 Rule 10 requires the change question to be determined first. Order 9 Rule 12 confirms the advocate remains on record to the conclusion of the matter including appeal. The filing was therefore a continuation of a determined matter without authority.

p. 2
02

Whether the defects were mere technicalities curable under Article 159(2)(d)

Holding

No; the violation of mandatory provisions of Order 9 Rule 9 is not a mere technicality

Reasoning

Counsel for the applicant had invited the court to invoke Article 159(2)(d) and Section 3A of the Civil Procedure Act to cure the irregularity. The court rejected this, holding that Order 9 Rule 9 is couched in mandatory terms and its violation cannot be regarded as a mere technicality. Having found the objection merited on this ground, the court declined to consider the other grounds, as they went to the merits.

p. 2

Legal principles established

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  • No new advocate may take over conduct of a suit which has been finally determined without leave of the court or consent of the outgoing and incoming advocates; violation of Order 9 Rule 9 is not a mere technicality
  • The mandatory provisions of Order 9 Rule 9 cannot be overridden as mere procedural technicality

Court orders

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  1. 1.The preliminary objection dated 25th October 2019 is upheld as merited
  2. 2.The application dated 17th October 2019 and all pleadings filed by Lawrence Obonyo Legal Advocates are struck out with costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rules 5, 6, 9, 10, 12
  • Oaths and Statutory Declarations Act Cap 15Section 5
  • Oaths and Statutory Declaration RulesRule 9
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 3A

Cases cited (6)

  • S. K. Tarwadi –v- Veronica Mulehlmann
    (2019) eKLR
  • Gitonga Kithinji Muriuki –v- Barako Ukarara
    (2004) eKLR
  • Mohamed Salim t/a Choice Butchery –v- Nasserpuria Memon Jamat
    (2015) eKLR
  • C.M.C. Motors Group Limited –v- Bengeria Arap Korir t/a Marben School & Another
    (2013) eKLR
  • Kenya National Union of Nurses –v- Kiambu County Public Service & 5 Others
    (2019) eKLR
  • Ngitimbe Hudson Nyanumba –v- Thomas Ongondo
    (2018) eKLR
On appeal from
Business Premises Rent Tribunal
130 of 2018
Jurisdiction invoked
Appellate/supervisory jurisdiction over the Business Premises Rent Tribunal; not expressly stated in the judgment

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, "Marino Hardware Ltd v Frabhudas Chunilal & 3 others [2019] KEELC 303 (KLR)", Case Analysis (2019). Not stated in the judgment (intended appeal against BPRT Case No. 130 of 2018, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/303/eng@2019-11-27

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