Chelule & another v Kuria & another (Appeal E001 of 2022) [2024] KEELC 88 (KLR)
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
#Key legal issues
#Whether the appeal ought to be dismissed for want of prosecution under Order 42 Rule 35
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
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.
Whether the incoming advocates were properly on record under Order 9 Rule 9
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
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.
Whether Mr. Kere acting alongside Mr. Kamwaro without a notice of appointment was fatal
Not fatal, since Mr. Kamwaro was already on record for the appellants and it was their right to choose which advocate acts alongside him
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.
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.The Chamber Summons dated 13th June, 2023 is struck out
- 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.Costs to abide the outcome of the appeal
- 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.
- Hirji & another v Chege (Environment and Land Case 430 of 2008) [2026] KEELC 2537 (KLR)[2026] KEELC 2537 (KLR)4 May 2026
- Owino v Onyango (Environment and Land Appeal E042 of 2024) [2026] KEELC 389 (KLR)[2026] KEELC 389 (KLR)29 Jan 2026
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.