GITONGA KITHINJI MURIUKI v BARAKO UKARARA [2004] KEHC 157 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

CIVIL APPEAL 543 OF 2002

GITONGA KITHINJI MURIUKI …………..........................................….…………. APPELLANT

VERSUS

BARAKO UKARARA ……………....................................……….…………….. RESPONDENT

RULING

This is an application brought under Section 79 G of the Civil Procedure Act, Order L Rule 1 and Order XLI Rule 4 (1) (2) (b) and Order XLIX Rule 5 of Civil Procedure (Revised) Rules and Under Section 3, 3 A and 63 (e) and all the other enabling provisions of the law in which the applicant seeks leave to file an appeal out of time, and for stay pending appeal.  The application is filed on behalf of the Appellant/Applicant by A. N. Ngungiri & Company Advocates.

It is common ground that A. N. Ngungiri & Company were not the advocates of the Appellant in the lower court, and that they have not applied for leave to represent the Appellant as required by Order 3 Rule 9 A of the Civil Procedure Rules which stipulates as follows:

“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be affected without an order of the court upon an application with notice to the Advocate on record.”

Accordingly, during the hearing of the application for leave to file appeal, Mr Ngaah, Counsel for the Respondent raised this issue arguing that Order 3 Rule 9 A, not having been complied with, the Application was incompetent, and ought to be struck out.

Mr Ngungiri, Counsel for the Appellant/Applicant, while admitting that leave of the Court had not been sought, argued that they filed a Notice of Change of Advocates for purposes of appeal only; therefore there was no need to seek leave.

I do not agree with Mr Ngunguri’s submission.  Order 3 Rule 9 A is clear beyond peradventure.  It has been enacted for the benefit of advocates themselves to prevent the mischief of clients jumping ship after judgment.  The Rule is important, and has been held mandatory (See, for example, Kubo Safaris Limited vs About Africa Limited (Mombasa HCCC 681 of 1995).  It applies on appeal, because an appeal is a continuation of the suit in the superior court.  Indeed Order 9 Rule 12 stipulates that the advocate is “considered an advocate of the party to the final conclusion of the cause or matter including any review or appeal”.

Accordingly, the application before this court purportedly filed by A. N. Ngungiri & Company Advocates is incompetent as it was filed without authority, and is hereby struck out, with costs to the Respondent.

Dated and delivered at Nairobi this 16th day of November, 2004.

ALNASHIR VISRAM

JUDGE