Behan & Okero Advocates v National Bank of Kenya [2007] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you can't approve a court order's wording and later attack it to kill an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Civil Appeal No. 158 of 2006 should be struck out as incompetent on the ground that the order appealed from was defectively extracted in that it incorporated two orders, one made after the ruling and in favour of the respondent
- 2.Whether the notice of appeal was fatally defective in that it expressed an intention to appeal against the whole of the ruling including an order in the respondent's favour
- 3.Whether an applicant who approved the draft order as extracted is estopped from later challenging its form or contents
- 4.Whether the stay of execution granted on 21st July 2006 in Civil Application No. 178 of 2006 should be vacated
Key legal issues
#Estoppel arising from approval of a draft order
A party who receives a draft order in good time, does not disapprove it, and whose counsel approved it, is estopped from later contending that the order was defectively drawn
The Court found as a fact that the draft order incorporating the leave and stay orders was sent to the applicant for approval and approved. Following the Court of Appeal for Eastern Africa in Sonko vs Patel, counsel as an officer of the court may not approve an order and later attack it; such conduct is a radical departure from the etiquette of the Bar and would be unjust.
Whether defective extraction of the order warranted striking out the appeal
Although the complaint about the contents of the extracted order was not altogether invalid, striking out the appeal was too drastic a remedy where no prejudice was shown and the appeal had been approved by the complainant
The Court acknowledged that the extracted order improperly incorporated a stay order made after the ruling. However, because the applicant had approved the draft and alleged no prejudice, the draconian remedy of striking out was refused and the appeal was permitted to proceed to hearing.
Scope of the authority in Republic vs The Managing Director of Kenya Posts & Telecommunications Corporation
That decision was distinguished as dealing with a different situation where a wrong Judge was cited on the face of the order, pointing to mistakes apparent on the face of the record
Mr. Odunga relied on the Kenya Posts case to show the appeal was incompetent. The Court perused it and found it partly similar but partly different: there the errors, including substitution of a wrong Judge (Khaminwa J for Githinji J), were apparent on the face of the order and raised suo motu, unlike the present approval-based estoppel.
Legal principles established
#- A party who approves a draft order as drawn is estopped by conduct from later challenging the form or substance of that order; counsel cannot approbate and reprobate
- Counsel, as officers of the court, should not approve a wrongly drawn order and later challenge its validity when the appeal comes up for hearing
- An appellate court will not strike out an appeal for defects in the extracted order where no prejudice to the applicant is alleged
Court orders
#- 1.The notice of motion dated 24th July 2006 is dismissed
- 2.Costs of the application are awarded to the respondent
- 3.The appeal shall proceed to hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C. Misc. Application No. 114 of 2004
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal over Civil Appeal No. 158 of 2006 arising from the High Court ruling under the Advocates Act (Chapter 16, Laws of Kenya); the application itself is by notice of motion under the Court's civil appellate procedure
Relief refused
#Striking out of Civil Appeal No. 158 of 2006
The applicant's counsel approved the order as drawn and cannot be allowed to approbate and reprobate; no prejudice was alleged
Vacation of the stay of execution granted on 21st July 2006 in Civil Application No. 178 of 2006
The application, including this relief, was dismissed; the appeal was allowed to proceed
Costs
Application dismissed with costs to the respondent (National Bank of Kenya)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the application by way of notice of motion dated 24th July, 2006 is dismissed with costs to the respondent, and the appeal shall proceed to hearing. Order accordingly.
That is an express representation that he accepted the decree as being correct in form and substance and the appellants have acted upon that representation by grounding their appeal on that decree.
as no prejudice to the applicant has been alleged, we see no reason to take the draconian action of striking out Civil Appeal No. 158 of 2006
The conduct and etiquette at the Bar demands that a counsel ought not to approbate and reprobate.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Behan & Okero Advocates v National Bank of Kenya [2007] KECA 286 (KLR)", Case Analysis (2007). Civil Appeal (Appli) 158 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/286/eng@2007-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.