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ELCDismissedKitale ELC No. 79 of 2019 (Appeal)· [2019] KEELC 524 (KLR)

Simiyu Aili Mukwe v School Committee Milele Primary School & another [2019] KEELC 524 (KLR)

Environment and Land Court
26 November 2019
MNMwangi Njoroge
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a new lawyer can file an appeal without permission from the original trial court because appeals are separate cases.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) determines a preliminary objection dated 28/5/2019 raised against the appellant's Notice of Motion dated 9/5/2019, which sought stay of execution of an order made in Kitale CMCC Land Case No. 79 of 2018 on 25/4/2019 ordering the appellant to vacate suit land within 60 days. The respondents objected that the firm of Walter Wanyonyi & Co. Advocates, which filed the application and memorandum of appeal, was not properly on record because no notice of change of advocates was filed or served and no leave of court or consent was obtained as required by Order 9 rule 9 of the Civil Procedure Rules, since the firm came on record after judgment; the application and appeal were therefore said to be null and void. The appellant countered that he had filed a notice of intention to act in person in the lower court, and that the appeal was a separate, distinct and independent proceeding from the trial suit, relying on Philip Kamuyu Njenga v Nganga Kimani and Paul Mwangangi v Abdul Aziz Ahmed. The court concurred with those authorities, holding that the appeal and the trial court case are two different sets of proceedings, and that the incoming advocates were not appearing on record in place of the former advocates. Order 9 rule 9 was therefore inapplicable. The preliminary objection was dismissed with costs to the appellant.

Key legal issues

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01

Whether Order 9 rule 9 of the Civil Procedure Rules applies to a new firm of advocates instructed to file an appeal after judgment in the lower court

Holding

It does not apply; the appeal is a distinct proceeding from the trial suit, so the incoming advocates were not appearing on record in place of the former advocates and needed neither leave of the court nor a consent.

Reasoning

The respondent argued that the Walter Wanyonyi firm was not properly on record because no notice of change of advocates was filed or served and no leave or consent was obtained under Order 9 rule 9, rendering the appeal null and void. The appellant relied on authority holding that where an appeal is filed in a separate forum, the proceedings are independent of the lower court suit. The court concurred with Paul Mwangangi and Philip Kamuyu Njenga, holding that the appeal stands on its own and Order 9 rule 9 was not appropriate to the situation.

p. 3

Legal principles established

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  • The appeal and the trial court case are two different sets of proceedings; a firm of advocates instructed only to file an appeal is not coming on record in place of the advocates on record in the lower court and therefore does not require leave of court or a consent under Order 9 rule 9 of the Civil Procedure Rules.

Court orders

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  1. 1.The Preliminary Objection dated 28/5/2019 is dismissed with costs to the appellant

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 9 rules 5, 6, 9(a-b), 10, 12, 13
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Stephen Mwangi Kimote -vs- Murata Sacco Society
    [2018] eKLR, Muranga ELC No. 219 of 2017
  • Lions Bluff Lodge Ltd -vs- Francis Mwabula Mwanyefa
    [2018] eKLR, Voi HCCC No. 15 of 2016
  • Livingstone Simel Sane -vs- Shadrack F. Ogata & Another
    [2014] eKLR, Voi HCCC No. 86 of 2013
  • Philip Kamuyu Njenga -vs- Nganga Kimani
    [2016] eKLR
  • Paul Mwangangi -vs- Abdul Aziz Ahmed
    [2017] eKLR
On appeal from
Chief Magistrate's Court, Kitale
Kitale CMCC Land Case No. 79 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); Article 159 of the Constitution of Kenya

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, "Simiyu Aili Mukwe v School Committee Milele Primary School & another [2019] KEELC 524 (KLR)", Case Analysis (2019). Kitale ELC No. 79 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/524/eng@2019-11-26

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