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ELCAllowedCivil Appeal (Busia High Court) – Notice of Motion dated 14th December 2023· [2024] KEELC 5904 (KLR)

Nyabola v Mbonda & another (Environment and Land Appeal 13 of 2013) [2024] KEELC 5904 (KLR)

High Court of Kenya
17 September 2024
4,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by Olao J of the High Court at Busia determined the Applicant's Notice of Motion dated 14th December 2023 seeking reinstatement of his appeal against the dismissal of his land suit (Busia PMCC No 355 of 2005, judgment of 24th April 2013). The appeal had been dismissed on 28th July 2021 by Omollo J for want of prosecution, unopposed, after the Applicant's then advocates, Ashioya & Company Advocates, neither filed a response nor attended court. The Applicant, who had paid Kshs 200,000 in legal fees and only learnt of the dismissal on 14th December 2023, blamed his former counsel. The court first held that B. M. Ouma & Company Advocates did not even require leave to come on record, since following Tobias M. Wafubwa v Ben Butali an appeal is new proceedings, not a continuation of the trial court proceedings under Order 9 Rule 9. On reinstatement, the court found the relationship with former counsel had irretrievably broken down, counsel had acted inconsistently by claiming to have ceased acting while remaining on record and accepting service, and the Applicant was kept in the dark; refusing a hearing would offend Article 50(1). Critically, the court observed that the appeal had never been admitted, no directions under Order 42 Rule 13 had been taken, and Section 79B compliance was absent, so the dismissal under Order 42 Rule 35 was premature, while Order 17 Rule 2 applies only to suits. Delay was computed from discovery, and no prejudice to the 2nd Respondent was shown. The court allowed the application, reinstated the appeal, directed availing of the lower court record within 30 days, fixed mention for 17th October 2024, and ordered each party to bear their own costs.

Key legal issues

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01

Change of advocates on appeal

Holding

Incoming counsel on appeal does not require leave under Order 9 Rule 9 since an appeal commences new proceedings

Reasoning

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.

p. 5
02

Setting aside dismissal for want of prosecution

Holding

The dismissal was set aside: the Applicant's counsel's misconduct explained the default and the dismissal was premature in law

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Leave granted to B. M. Ouma & Company Advocates to come on record for the Appellant
  2. 2.Order of 28th July 2021 dismissing the appeal set aside and the appeal reinstated
  3. 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. 4.Each party to meet their own costs
  5. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.