Nzoia Sugar Co Ltd V Collins Fungututu  EKLR
|Civil Application Nai 104 of 1986||24 Dec 1986|
Harold Grant Platt
Court of Appeal at Kisumu
Nzoia Sugar Co Ltd v Collins Fungututu
Nzoia Sugar Co Ltd v Collins Fungututu  eKLR
Nzoia Sugar Co Ltd v Fungututu
Court of Appeal, at Kisumu December 24, 1986
Civil Application No NAI 104 of 1986
(In an intended appeal from the judgment of the High Court at Kakamega,
Civil Practice and Procedure - applications – interlocutory applications - failure to cite enabling statute in the application - motion omitting to state “Court of Appeal Rules” - effect of such omission – delay in filing appeal caused by misunderstanding between instructing advocates and the instructed advocate – either party claiming likelihood of prejudice – whether time should be extended – Court of Appeal Rules rules 4, 42.
Advocate – instructing of advocate by another – instructions to defend a party - where instructed advocate in distant place – some guidelines in giving such instructions.
A firm of advocates in Nairobi instructed an advocate outside of Nairobi to defend the applicant in a suit filed against it by the respondent in the High Court at Kakamega. The defence failed and judgment was given in favour of the plaintiff/respondent. The instructed advocate informed the firm of advocates in Nairobi of this outcome, stating that copies of the proceedings had been applied for in the event that the firm intended to appeal. However, no notice of appeal was lodged. An exchange of correspondence followed from which it emerged that the Nairobi firm had been under the impression that the instructed advocate would proceed to file an appeal while the advocate, on his part, had chosen not to file the appeal without the express instructions of the firm.
As the time within which to appeal had ran out, the advocate applied for leave to lodge a notice of appeal and a record of appeal out of time, attributing the delay to a genuine misunderstanding between his firm and the Nairobi advocates. The respondent’s advocate opposed the application, arguing that the advocate had no authority to bring it, that the motion failed to specify the legal authority on which it was based and that the court should consider the prejudice to the respondent.
1. The applicant’s advocate had authority to bring this application as he had been given instructions to file it.
2. Though the motion was stated to be brought “under Rules 4 and 42” without stating “of the Court of Appeal Rules”, rules 4 and 42 could only refer to the Court of Appeal Rules and there was no difficulty which arose out of that omission.
3. There would be prejudice to one side or the other if the application was or was not granted. The prejudice claimed by both sides cancelled each other out.
4. (Obiter) Where a case has been decided against an instructed advocate, it is primarily the duty of the instructing advocates, from whom the authority stems, to give instructions that the instructed advocate should file a notice of appeal.
5. (Obiter) It is the instructed advocate’s duty when getting instructions to know what the client wishes to do if the decision goes against the client. This will enable him to advise on whether an appeal should be lodged but in the meanwhile the appeal process can proceed.
6. (Obiter) Where distances are such that the time for filing an appeal may run out during the exchange of correspondence between the advocates, instructions to prosecute or defend a case should include instructions as to an appeal.
No cases referred to.
Court of Appeal Rules (cap 9 Sub Leg) rules 4, 5(2)(b), 42
Mr Minishi for the Applicant
Mr Nakhone for the Respondent