Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment· [2024] KEELC 88 (KLR)

Chelule & another v Kuria & another (Appeal E001 of 2022) [2024] KEELC 88 (KLR)

High Court of Kenya
24 January 2024
2,244 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court ruled an appeal from the Rent Tribunal can't be dismissed for delay before case directions are given, and advocates must follow the mandatory procedure to come on record.

What this practically means

#

Executive summary

#
This was a ruling of the High Court at Narok (Hon. Mbogo C.G., Judge) on a Chamber Summons dated 13th June 2023 in which the 1st respondent/applicant sought dismissal of an appeal from the Business Premises Rent Tribunal for want of prosecution, contending that the appellants had taken no steps for 14 months and had filed the record of appeal over a year after judgment. The application was opposed on two grounds: that the incoming advocates for the applicant were not properly on record contrary to Order 9 Rule 9 of the Civil Procedure Rules, and that the appeal had in fact been listed severally, the record of appeal having been filed and served on 13th July 2023. The applicant relied on authorities on dismissal for want of prosecution and on curability of procedural omissions under Article 159(2)(d). The court framed one main issue: whether the appeal ought to be dismissed for want of prosecution. It held that under Order 42 Rule 35, dismissal presupposes that directions under Order 42 Rule 13 have been given, and since the BPRT file had not been submitted and the appeal was yet to be admitted, dismissal was premature. On representation, the court found the procedure for a post-judgment change of advocates under Order 9 Rule 9 mandatory, though Mr. Kere acting alongside the already-on-record Mr. Kamwaro was not fatal. The court struck out the Chamber Summons, directed the firms of Jonathan Law Advocates and Githui Advocates LLP to formally come on record in accordance with Order 9 Rule 9, and ordered costs to abide the outcome of the appeal.

Key legal issues

#
01

Whether the appeal ought to be dismissed for want of prosecution under Order 42 Rule 35

Holding

The application failed because directions had not been given and the appeal had not yet been admitted; dismissal under Order 42 Rule 35(1) presupposes directions under Rule 13

Reasoning

Order 42 Rule 35 envisages two scenarios for dismissal: failure to set the matter down after directions, or failure to set it down within one year of service of the memorandum of appeal. The court noted that the BPRT file had not yet been submitted and the appeal was yet to be admitted, so no directions had been given. Dismissal was therefore premature.

p. 4
02

Whether the incoming advocates were properly on record under Order 9 Rule 9

Holding

The firms of Jonathan Law Advocates and Githui Advocates LLP were not properly on record; the correct procedure after judgment is leave of court or a consent filed between outgoing and incoming advocates, and the procedure is mandatory

Reasoning

Order 9 Rule 9 requires that a change of advocates after judgment be effected only by court order or by a consent filed between the outgoing and incoming advocates. Counsel acknowledged the omission of the consent and notice of appointment from the uploaded documents. The court held the error offended the express mandatory provisions of Order 9 Rule 9 and directed the firms to formally come on record.

p. 5
03

Whether Mr. Kere acting alongside Mr. Kamwaro without a notice of appointment was fatal

Holding

Not fatal, since Mr. Kamwaro was already on record for the appellants and it was their right to choose which advocate acts alongside him

Reasoning

The court distinguished the situation of Mr. Kere from the main Order 9 Rule 9 question. Because Mr. Kamwaro was already properly on record for the appellants/respondents, a colleague acting alongside him did not constitute a change of advocate requiring leave, and the party retains the right to choose which advocates act for it.

p. 5

Legal principles established

#
  • An appeal from a subordinate court to the High Court cannot be dismissed for want of prosecution before directions have been given or before the appeal has been admitted
  • The procedure for a change of advocates after judgment under Order 9 Rule 9 of the Civil Procedure Rules is mandatory and not a mere technicality

Court orders

#
  1. 1.The Chamber Summons dated 13th June, 2023 is struck out
  2. 2.The firm of Jonathan Law Advocates and Githui Advocates LLP to formally come on record in accordance with Order 9 Rule 9 of the Civil Procedure Rules
  3. 3.Costs to abide the outcome of the appeal

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2) and Article 159(2)(d)
  • Constitution of KenyaArticle 50
  • Civil Procedure ActSection 3A; Section 79B; Section 79C
  • Civil Procedure RulesOrder 42 Rules 11, 13, 35(1) and (2); Order 17 Rule 2; Order 51 Rule 1; Order 9 Rules 9 and 10

Cases cited (6)

  • Abraham Mukhola Asitsa v Silver Style Investment Company Limited
    [2020] eKLR
  • Mwangi S Kimenyi v Attorney General & another
    Civil Suit Misc No 729 of 2009
  • Aviation Cargo Support Limited v St. Mark Freight Services Limited
    [2014] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • Philip Chemwolo & another v Augustine Kubende
    [1982-88] 1 KAR 103
  • Kenya Bankers Association & others v Minister for Finance
    [2002] 1 KLR 61
On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Appellate jurisdiction over appeals from subordinate courts under Section 79B and Section 79C of the Civil Procedure Act; application brought under Article 159(2) of the Constitution, Order 42 Rule 35(1),(2), Order 17 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Chelule & another v Kuria & another (Appeal E001 of 2022) [2024] KEELC 88 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/88/eng@2024-01-24

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