Bidii Traders Savings Group (Suing thru Simon Kiambi Ngaruni (Secretary) & another v Kiarie (Chairman) & another (Civil Appeal E103 of 2021) [2023] KEHC 26982 (KLR) (14 December 2023) (Ruling)
Neutral citation:
[2023] KEHC 26982 (KLR)
Republic of Kenya
Civil Appeal E103 of 2021
TW Cherere, J
December 14, 2023
Between
Bidii Traders Savings Group (Suing thru Simon Kiambi Ngaruni (Secretary)
1st Appellant
Fridah Kinya Kiambi (Vice Secretary)
2nd Appellant
and
Stephen Kiarie (Chairman
1st Respondent
Teresia Wanjara (Treasurer)
2nd Respondent
Ruling
1.By orders dated March 13, 2023, this court directed Appellants to file and serve the record of appeal within 30 days and fixed the matter for mention on July 11, 2023 to confirm compliance.
2.On July 11, 2023, the record of appeal had yet not been filed and the time for compliance was extended to October 4, 2023.
3.On October 4, 2023, there was still no compliance. Since the Appellants’ advocate was absent, no explanation was offered for non-compliance and the court marked the appeal as abandoned.
4.By summon dated October 19, 2023, Appellants seek reinstatement of the appeal. By an affidavit sworn on October 19, 2023, Appellants fault their advocate for not filing the appeal as directed by the court. Annexed to the affidavit are Copies of proceedings and judgment and Appellants urge the court to grant them time to prepare and file the record of appeal.
5.The application is opposed by way of an affidavit sworn by the 1st Respondent on November 1, 2023 faulting the Appellants for moving the court 15 days after the dismissal of the appeal which time they contend is inordinate. They also urge court to find that the firm of Steve Muriira & Co. Advocates is not properly on record for the Appellants.
Analysis and Determination
6.I have considered the notice of motion in the the light of the affidavits and annexures on record and I have deduced the following issues for determination:1.Whether the firm of Steve Muriira & Co. Advocates is properly on record for the Applicants2.Whether Appellants have made out a case for reinstating the appeal
Whether the firm of Steve Muriira & Co. Advocates is properly on record for the Appellants
7.The objection raised by the Respondents touches on the locus standi of the firm of Steve Muriira & Co. Advocates to represent Applicants after delivery of judgment in the trial court.
8.The provisions of order 9 rule 9 of the Civil Procedure Rules make it mandatory that change of Advocates after judgment has been entered must be through an order of the court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate (See Violet Wanjiru Kanyiri v Kuku Foods Limited [2022] eKLR).
9.The lower court matter and this Appeal are separate suits. In my considered view, the firm of Steve Muriira & Co. Advocates neither required any consent from the advocate that acted for the Appellants in the lower court nor leave of court to act in this matter.
Whether Applicants have made out a case for reinstating the appeal
10.Whereas it is on record that Appellants did not file the record of appeal within the time allowed by the court, it should be the court’s last resort to deny a party a chance to be heard on merit especially in a case like this one where the Respondents have not demonstrated that the orders sought will cause them any undue difficulty or prejudice.
11.In any case, the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better as counsel in this case ought to have known (See Belinda Murai & 9 others v Amos Wainaina [1979] eKLR).
12.Consequently, I find that the interests of justice are in favour of reinstating the appeal for hearing. The upshot is that the notice of motion dated October 19, 2023 is allowed and it is hereby ordered:1.The firm of Steve Muriira & Co. Advocates is properly on record for the applicants2.The time for filing and serving the record of appeal is extended with 45 days from today’s date3.Mention on February 29, 2024 to confirm compliance and for orders concerning the disposal of the appeal.
DATED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Munene/KinotiFor Appellants - Mr. Muriira for Steve Muriira & Co. AdvocatesFor Respondents - Mr. Muthomi for Kiautha Arithi & Co Advocates