Patel v Gottfried (Civil Appeal No. 10 of 1952) [1955] EACA 16 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir BARCLAY NIHILL (President), Sir NEWNHAM WORLEY (Vice-President) and MAHON, J. (Tanganyika).

MANUBHAI BHAILALBHAI PATEL, Appellant (Original Defendant) 11

RICHARD GOTTFRIED, Respondent (Original Plaintiff)

## Civil Appeal No. 10 of 1952

(Appeal from the decision of H. M. Supreme Court of Kenya, Connell, J.)

On the day fixed for the hearing of the appeal, viz. 26th January, 1953, the appellant purported to appear by Mr. X, an advocate.

Subsequent to Mr. X having filed the memorandum of appeal, he was, by order of the Supreme Court of Kenya dated 8th September, 1952, "suspended from practising within the jurisdiction of this court".

By the Rules of the Court of Appeal, any advocate entitled to practice in any of the constituent territories has a right of audience in the Court of Appeal, irrespective of the territory from which the appeal emanates.

Mr. X at the date fixed for the hearing was a practising advocate in Tanganyika and Uganda, both of which are constituent territories.

The respondent's advocate had received no notice of change of appellant's advocate and had assumed that the appellant was no longer represented by counsel. He asked for an adjournment, being unprepared to argue the appeal on the merits without notice.

Held (26-1-53).—The order for suspension meant that Mr. X was prohibited from practising as an advocate within the territorial limits of Kenya, this being the only possible<br>construction of section 15 aforesaid. The right of audience before the Court of Appeal as a practising advocate of a constituent territory, did not confer on Mr. X the right to practice as an advocate in Kenya.

Hearing of appeal adjourned sine die.

Sirley for respondent.

ORDER (delivered by NIHILL, P.)—The Court considers that it must accede to the request made by learned counsel for the respondent for an adjournment of the hearing of this appeal.

Briefly the circumstances upon which the application rests are as follows:—

The date of the judgment appealed against, which is a judgment of the Supreme Court of Kenya, is the 29th of November, 1951. On the 12th of February, 1952, a memorandum of appeal was filed by Mr. X with an address in Nairobi. On that date Mr. X was a practising advocate of the Colony of Kenya. By an order of the Supreme Court dated 8th of September, 1952, this gentleman was suspended for a period of two years from practising as an advocate. To

Advocate—Whether right of audience before Eastern African Court of Appeal during period of suspension—Advocates Ordinance (Kenya), sections 2 and $\overline{15}$ .

quote from the final sentence of the judgment signed by the learned Chief Justice and Bourke, P. J., "he is suspended from practising within the jurisdiction of this Court". Doubtless the learned Judges, when using these words, had in mind the provision of section 15 of the Kenya Advocates Ordinance, 1949. By section 2 of that Ordinance "Court" is defined as meaning "His Majesty's Supreme Court of Kenya", but clearly the order of suspension cannot mean only that the person suspended cannot appear in the Supreme Court of Kenya but must mean that he is prohibited from practising as an advocate within the territorial limits of the Colony. We think that that is the only possible construction of section 15 which gives the court, *inter alia*, the power to suspend an advocate from practice.

To return to the circumstances of this appeal; on the 15th of January, an application was made by the respondent's advocate to the Registrar for the fixing of the hearing date, and to-day's date was fixed. Mr. Sirley has informed us that it was not until this morning that he knew that $Mr$ . X was appearing for the appellant. The respondent's action in asking for a hearing date was to obtain a formal order of dismissal. From the record it is certainly apparent that the respondent's advocate had received no notice of any change of advocate for the appellant, and that being the case Mr. Sirley was quite entitled to assume that the appellant was no longer represented by an advocate. He is therefore not prepared to argue this appeal on its merits without notice.

The hearing of this appeal will accordingly be adjourned *sine die*. Mr. X has produced evidence before us from which we are satisfied that he is a practising advocate both in Uganda and Tanganyika and according to our rules, any advocate entitled to practise in any of the constituent territories has a right of audience in this court irrespective of the territory from which the appeal may emanate. This right of audience, however, does not of course, confer on Mr. X the right to practise as an advocate in Kenya and he could only do that at his own peril and in defiance of the order made by the Supreme Court of Kenya.

We suggest therefore that $Mr. X$ should take the opportunity which our order for an adjournment gives him to reconsider his position.