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ELRCDismissedAppeal dated 4th November, 2019 (from Milimani CMEL No. 60 of 2018)· [2020] KEELRC 708 (KLR)

Star Plastics Limited v Catherine Mutave Philip [2020] KEELRC 708 (KLR)

High Court of Kenya
17 July 2020
2,888 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed you can hire a new lawyer for an appeal without court permission, and the opponent's attempt to kill the appeal failed.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 25th November, 2019 seeking to strike out the Appellant's notice of motion dated 14th November, 2019 (seeking stay of execution of a decree of KES 236,525.77 plus costs and interest entered by Hon A. M. Obura, SPM, on 8th October, 2019 in Milimani CMEL No. 60 of 2018) and the entire appeal, on the ground that the firm of Omao Omosa and Company Advocates came on record for the Appellant after judgment without leave of the court under Order 9 Rule 9 of the Civil Procedure Rules, rendering the appeal and application incompetent. The Respondent relied on John Langat v Kipkemou Terer and Stephen Mwangi Kimote v Murata Sacco Society, and on the Mukisa Biscuit definition of a preliminary objection. The Appellant filed no submissions. Maureen Onyango J accepted that the objection met the Mukisa Biscuit threshold as a point of law but held that Order 9 Rule 9 does not govern the filing of an appeal, since an appeal is a new suit distinct from the original suit; the rule's purpose is to protect advocates in the original suit from being dismissed after judgment, and their costs are unaffected. The court followed Ng'etich J. in Peter Chere Kiiru v Charles Mulanda Manyelo and noted that a consent dated 4th November, 2019 was already on record, which would independently have justified allowing the appeal to proceed. The court had earlier granted a conditional stay on the Appellant depositing the decretal amount in court. The preliminary objection was dismissed with costs to the Appellant, the Appellant was directed to set down the amended application for hearing, and the interim orders remained in place pending its determination.

Key legal issues

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01

Whether Order 9 Rule 9 of the Civil Procedure Rules applies to the filing of an appeal by a firm of advocates not on record in the original suit

Holding

It does not; an appeal is a new suit distinct from the original suit, so leave under Order 9 Rule 9 was unnecessary and the appeal and application are competent.

Reasoning

The court held that the appeal and application are not within the suit in which judgment was delivered; an appeal is a new suit. Order 9 Rule 9 protects advocates who acted in the original suit from being sacked after judgment, but their entitlement to costs in the original suit is unaffected by a new advocate prosecuting the appeal. The court adopted the reasoning of Ng'etich J. in Peter Chere Kiiru. A consent dated 4th November, 2019 was also on record, which would independently have justified exercising discretion in the Appellant's favour.

p. 4
02

Whether the Preliminary Objection met the Mukisa Biscuit threshold

Holding

The court accepted that the objection met the threshold as a point of law, but found no merit in it.

Reasoning

The court acknowledged the objection satisfied the Mukisa Biscuit formulation as reproduced in Stephen Mwangi Kimote v Murata Sacco Society, since it raised a point of law on the face of the record. Nevertheless, on the substantive law, the requirement of Order 9 Rule 9 was not attracted to the lodging of the appeal, and a consent between the outgoing and incoming advocates was on the record. The objection was therefore dismissed.

p. 3

Legal principles established

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  • Order 9 Rule 9 does not require a new advocate to obtain leave before filing an appeal, because an appeal is a distinct suit from the original suit; a party is at liberty to engage a different advocate for the appeal.
  • The purpose of Order 9 Rule 9 is to protect advocates from mischievous clients who dismiss them after judgment has been delivered, to safeguard the advocates' remuneration.
  • A preliminary objection must be a point of law which has been pleaded or arises by clear implication out of pleadings and which may dispose of the suit (Mukisa Biscuit threshold).

Court orders

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  1. 1.The Respondent's Preliminary Objection is dismissed with costs to the Appellant
  2. 2.The Appellant is directed to set down the Amended Application dated 21st January, 2020 for hearing
  3. 3.The interim orders issued by the Court remain in place pending the determination of the Amended Application, the Appellant having deposited the decretal amount in Court

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 50(2)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • John Langat v Kipkemou Terer & 2 Others
    [2013] eKLR
  • Stephen Mwangi Kimote v Murata Sacco Society
    [2018] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Peter Chere Kiiru v Charles Mulanda Manyelo
    [2019] eKLR
  • S.K Tarwadi v Veronica Muehlemann
    (2019) eKLR
On appeal from
Chief Magistrate's Court, Milimani
CMEL No. 60 of 2018
Jurisdiction invoked
Appellate jurisdiction over the subordinate court's decree (Civil Procedure Act and Civil Procedure Rules); Article 159(2)(d) and Article 48 of the Constitution invoked on delivery of judgment

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, "Star Plastics Limited v Catherine Mutave Philip [2020] KEELRC 708 (KLR)", Case Analysis (2020). Appeal dated 4th November, 2019 (from Milimani CMEL No. 60 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/708/eng@2020-07-17

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