Nyabola v Mbonda & another (Environment and Land Appeal 13 of 2013) [2024] KEELC 5904 (KLR)
The bottom line
#Kenya's High Court reinstated an appeal wrongly dismissed before key procedural steps, confirming appeals are new proceedings and clients shouldn't suffer for advocates' failures.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates on appeal
Incoming counsel on appeal does not require leave under Order 9 Rule 9 since an appeal commences new proceedings
Relying on Tobias M. Wafubwa v Ben Butali, the court held that an appeal is new proceedings in another court where different rules apply, so parties may choose counsel on appeal without a notice of change or leave. In any event no prejudice to the respondent was shown, and the relationship with former counsel had irretrievably broken down.
Setting aside dismissal for want of prosecution
The dismissal was set aside: the Applicant's counsel's misconduct explained the default and the dismissal was premature in law
The court found former counsel received fees yet abandoned the client, accepted service while claiming to have ceased acting, and never informed the client of the dismissal. Delay was computed from discovery on 14th December 2023. Further, no directions had been taken and Order 42 Rule 35 could not be triggered absent Section 79B compliance, so the dismissal was premature and reinstatement caused no prejudice.
Legal principles established
#- An appeal is not a continuation of proceedings in the lower court, so Order 9 Rule 9 leave for change of advocates does not apply to appeals
- An appeal cannot be dismissed for want of prosecution under Order 42 Rule 35 before directions under Section 79B have been taken
- Order 17 Rule 2 of the Civil Procedure Rules applies only to suits, not appeals
Court orders
#- 1.Leave granted to B. M. Ouma & Company Advocates to come on record for the Appellant
- 2.Order of 28th July 2021 dismissing the appeal set aside and the appeal reinstated
- 3.Deputy Registrar to ensure the record in Busia CMCC No 355 of 2005 is availed and placed before the Court within 30 days for admission or otherwise, alerting the Chief Magistrate Busia
- 4.Each party to meet their own costs
- 5.Mention on 17th October 2024
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Orders 42 Rule 21 and 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabola v Mbonda & another (Environment and Land Appeal 13 of 2013) [2024] KEELC 5904 (KLR)", Case Analysis (2024). Civil Appeal (Busia High Court) – Notice of Motion dated 14th December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5904/eng@2024-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.