Ezekiel Kiprono Lamai v Lawrence Kibor Nganai [2020] KEELC 3283 (KLR)
The bottom line
#Kenya's High Court confirmed a new advocate can file an appeal without a notice of change because an appeal is a separate case.
What this practically means
#Executive summary
#Key legal issues
#Whether an incoming advocate on appeal must comply with Order 9 Rule 9 (notice of change of advocates)
No. An appeal is a distinct suit from the primary suit; the advocate who did not act in the lower court may properly come on record on appeal without a notice of change of advocates.
The court considered superior court decisions cited by both sides and adopted the position that an appeal is a separate and distinct suit from the original suit. Order 9 Rule 9 governs replacement of advocates in an ongoing or concluded suit. Since the appeal was commenced afresh through the newly instructed firm, no advocate was being replaced and the Rule was not infringed. The finding does not preclude the appellant from pursuing the appeal through properly instructed counsel.
Whether the appeal was defective and should be struck out
The objection failed; once the advocates were properly on record, the defect ground collapsed and the Notice of Change issue did not arise.
Having found the firm properly instructed and on record, and that the Memorandum of Appeal and Motion were drawn and filed through its chambers, the court held the notice-of-change question did not arise. Ground 4 of the preliminary objection was not pursued in submissions and was taken as abandoned. The objection as a whole therefore failed.
Legal principles established
#- An appeal is a separate and distinct suit from the original suit that is the subject matter of the appeal.
- Order 9 Rule 9 of the Civil Procedure Rules applies to representation in an ongoing or concluded suit, not to the commencement of an appeal.
Court orders
#- 1.M/s Kalya & Company Advocates are properly on record for the Appellant in the appeal; the Notice of Change of Advocate issue does not arise.
- 2.Ground 4 of the preliminary objection taken to have been abandoned.
- 3.The preliminary objection is dismissed with costs to the Appellant.
- On appeal from
- Chief Magistrate's Court, Eldoret (Environment and Land)
- ELC No. 76 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrates' Court (Environment and Land jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezekiel Kiprono Lamai v Lawrence Kibor Nganai [2020] KEELC 3283 (KLR)", Case Analysis (2020). Eldoret Chief Magistrates' ELC No. 76 of 2018 (appeal; Memorandum of Appeal dated 18th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3283/eng@2020-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.