Carla v Marelli & 2 others (Environment & Land Case 61 of 2009) [2022] KEELC 3625 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether Katsoleh & Co Advocates were properly on record after judgment
They were not properly on record; they filed documents and a Notice of Appeal without leave under Order 9 Rule 9, and the later consent was not endorsed as an order of the court, rendering the application incompetent.
Order 9 Rule 9 requires a court order or a filed consent to effect a change of advocate after judgment. Although a consent dated 3rd February 2021 was later filed on 28th May 2021, it was not endorsed by the court as an order and was filed only after a preliminary objection was raised. The firm had also filed a Notice of Appeal on 5th August 2020 while not on record. Following John Langat v Kipkemoi Terer and Florence Hare Mkaha, the firm was not properly on record and the application was incompetent.
Whether there was a valid Notice of Appeal to warrant stay
No. The Notice of Appeal was filed by a firm not on record and was outside the 14-day period, with no leave sought to file out of time.
Rule 75(2) of the Court of Appeal Rules requires a Notice of Appeal within 14 days of the decision. The Notice filed on 5th August 2020 was filed by Katsoleh & Co Advocates who were not properly on record, and there is nothing in the record showing the Applicant sought and obtained leave to file out of time. Counsel's conduct of filing the consent after the preliminary objection could not sanitize the irregularity.
Whether the threshold for stay of execution was met
Even if the application were competent, the Applicant failed to demonstrate substantial loss, particularly as the decree was monetary and no inability to refund was shown.
Relying on Antoine Ndiaye v African Virtual University, in a money decree substantial loss lies in the respondent's inability to refund the decretal sum should the appeal succeed. The Applicant did not establish that the Respondent would be unable to refund. Nor was a valid Notice of Appeal in place. The court therefore found the stay threshold unmet and dismissed the application with costs.
Legal principles established
#- A change of advocates after judgment cannot be effected without an order of the court under Order 9 Rule 9 of the Civil Procedure Rules; a consent between advocates that has not been endorsed as an order of the court is ineffectual.
- Article 159 of the Constitution cannot be invoked to override mandatory rules of procedure and timelines.
- In a monetary decree, substantial loss for stay pending appeal lies in the inability of the decree-holder to refund the decretal sum if the appeal succeeds, which the applicant must prove.
Court orders
#- 1.The application dated 25th November 2020 seeking stay of execution of the judgment dated 27th May 2020 is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Inherent jurisdiction to stay execution of its own judgment pending intended appeal (Notice of Motion dated 25th November 2020; Civil Procedure Rules invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carla v Marelli & 2 others (Environment & Land Case 61 of 2009) [2022] KEELC 3625 (KLR)", Case Analysis (2022). Environment & Land Case 61 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3625/eng@2022-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.