Harit Sheth t/a Harit Sheth Advocate v K. H. Osmond
t/a K H Osmond Advocate
Court of Appeal, at Nairobi August 1, 2003
Omolo, O’Kubasu & Githinji JJ A
Civil Appeal No 276 of 2001
(An appeal from the Ruling and Order of the High Court of Kenya at
Milimani Commercial Court Nairobi (Justice Ole Keiwua) dated
16th October, 1998 in HCCC No 311 of 1998 (OS)
Civil Practice and Procedure - appeal - leave to appeal – leave to appeal against order dismissing originating summons for enforcement of an advocate’s undertaking – whether absence of leave fatal - under Civil
Procedure Rules (cap 21 Sub Leg) order LII rule 7 .
Statutes - interpretation of statutes - subsidiary legislation – literal interpretation - where literal interpretation of rules leads to inconsistency and repugnancy – whether rules to be construed in the sense which makes them operative.
The appellant filed an appeal against the dismissal of his application under order 52 rule 7 and 10 of the Civil Procedure Rules and section 3A of the
Civil Procedure Act for an order that the respondent should honour a professional undertaking.
The respondent raised the issue of the absence of leave to appeal because order XLII Rule 1(1)(dd) of the Civil Procedure Rules did not include
Rule 7 of Order LII as one of the orders from which an appeal can be made as if right.
The appellant submitted that rule 6A of order LII referred to in order XLII rule 1(1) (dd) and was in identical terms with the existing order LII rule 7 including the marginal notes.
1. The Civil Procedure Rules order XLII Rule 1(1)(dd) should not be construed literally. It should be construed together with order LII in the present form and be given a sensible meaning to make it operative.
2. The order of the superior court is appellable as of right and that the appeal should proceed to hearing on its merits.
3. (Obiter Dictum) It is fitting that for the benefit or legal practice, a recommendation be made to the Rules Committee, which we hereby make, that appropriate amendments to rule 1(1)(dd) of order XLII of the Civil Procedure Rules be made as soon as possible.
No cases referred to.
Simonds, V et al (Eds) (1961) Halsbury’s Laws of England London:
Butterworths 3rd Edn Vol XXXVI para 582
1. Court of Appeal Rules (cap 9 Sub Leg) rules 39, 80
2. Civil Procedure Act (cap 21) sections 3A, 81
3. Civil Procedure Rules (cap 21 Sub Leg) order XLII rule 1(1)(dd); order
LII rules 4, 5, 6, 6A, 7, 10
4. Advocates Act (cap 16)
5. Civil Procedure (Amendment) Rules 1973
6. Civil Procedure (Amendment) Rules 1975
7. Civil Procedure (Amendment) Rules 1978
8. Civil Procedure (Amendment) Rules 1996
Mr Nagpal for the Appellant.
Mr Egala for the Respondent.