BEHAN & OKERO ADVOCATES v NATIONAL BANK OF KENYA LTD [2008] KECA 139 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal because the complaining party's own lawyer had approved the order, so they couldn't later complain about it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal was fatally defective because the extracted order incorporated two orders, one of which (a 14-day stay of execution) was in favour of the appellant
- 2.Whether the notice of appeal was fatally defective for indicating an intention to appeal against the whole of the ruling including an order made in the appellant's favour
- 3.Whether an applicant who approved a draft order as drawn is estopped from later challenging the form or substance of that order
- 4.Whether the appeal should be struck out as incurably defective and whether the stay of execution granted in Civil Application No. 178 of 2006 should be vacated
Key legal issues
#Estoppel arising from approval of a draft order by a party's advocate
An advocate who approves an order as drawn cannot later challenge its validity when the appeal founded on it comes up for hearing; the client is estopped by that conduct.
The draft order was sent to the applicant's counsel on 20th June 2006 and approved. Counsel, as an officer of the court, should not approve a wrongly drawn order and later challenge its validity. Adopting the Court of Appeal for Eastern Africa's reasoning in Sonko v Patel, approval without reservation is an express representation that the order is correct in form and substance; it would be unjust to allow approbation and reprobation. Two defective grounds were in any event abandoned, and no prejudice was alleged.
Incorporation of two orders in one extracted order
Although the complaint was not altogether invalid, the defect did not justify striking out the appeal where the party complaining had approved the order and suffered no prejudice.
The court accepted that the extracted order wrongly combined an order granting leave to appeal with a 14-day stay of execution granted after the ruling. However, the draft was approved by the applicant, the applicant did not dispute the approval by affidavit, and no prejudice was shown. The Court of Appeal for Eastern Africa in Air Alfaraj and Sonko v Patel was applied. Striking out was described as a draconian step not warranted on these facts.
Legal principles established
#- A party who approves an order as drawn is estopped by that conduct from later questioning the form or substance of that order in the appeal; counsel may not approbate and reprobate.
- Striking out an appeal is a draconian action that should not be taken where no prejudice is alleged and defects are technical or curable.
Court orders
#- 1.The notice of motion dated 24th July 2006 is dismissed with costs to the respondent
- 2.Civil Appeal No. 158 of 2006 shall proceed to hearing
- 3.The application to vacate the order of stay of execution granted on 21st July 2006 in Civil Application No. 178 of 2006 is not granted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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 under the Appellate Jurisdiction Act and Court of Appeal Rules to strike out an incompetent appeal; application by notice of motion in a pending appeal
Relief refused
#Striking out Civil Appeal No. 158 of 2006
The applicant's counsel approved the draft order as drawn and cannot approbate and reprobate; no prejudice was alleged
Vacating the stay of execution granted on 21st July 2006 in Civil Application No. 178 of 2006
The application was dismissed in its entirety with costs to the respondent
Costs
The application by way of notice of motion dated 24th July, 2006 is dismissed with costs to the respondent
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.
That being our view of the matter, and 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.
That was 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.
The conduct and etiquette at the Bar demands that a counsel ought not to approbate and reprobate.
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.
Issues in the judgment
#The application is described as seeking to strike out the appeal with costs, but the style of cause labels the applicant 'APPLICANT/RESPONDENT' and the bank 'RESPONDENT/APPELLANT', and the notice of motion refers to the respondent's appeal as 'Civil Appeal No. KSM 29 of 2006' whereas the title and body refer to Civil Appeal No. 158 of 2006.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BEHAN & OKERO ADVOCATES v NATIONAL BANK OF KENYA LTD [2008] KECA 139 (KLR)", Case Analysis (2007). Civil Appeal (Appli.) 158 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/139/eng@2008-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.