Star Plastics Limited v Catherine Mutave Philip [2020] KEELRC 708 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the Preliminary Objection met the Mukisa Biscuit threshold
The court accepted that the objection met the threshold as a point of law, but found no merit in it.
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.
Legal principles established
#- 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
#- 1.The Respondent's Preliminary Objection is dismissed with costs to the Appellant
- 2.The Appellant is directed to set down the Amended Application dated 21st January, 2020 for hearing
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.