Failure to file notice of advocate change

I filed a notice of appeal at the Court of Appeal because I was dissatisfied with a High Court decision. Initially, I had engaged an advocate, but later I wanted to change my advocate. Unfortunately, my new lawyer did not file a formal notice of change of advocate. Instead, he started writing letters, requesting appeal documents and acting as if he was already my advocate. The other side is now arguing that my appeal is incompetent because I never filed a notice of change of advocate, and that the notice of appeal I filed does not itself amount to instituting an appeal. I am very worried. Does this mean my appeal automatically fails just because of this technicality?

OP, Mwanza

Under Rules 24 and 32(1) of the Court of Appeal Rules, 2009, as amended, a party changing their advocate must file a notice to inform the Court and the other party. However, the Court has emphasised that failing to file this notice is not automatically fatal. Its primary purpose is to indicate where service should be directed. Unless the omission causes prejudice to the other party, such as misdirecting service or causing confusion, our opinion is that the appeal cannot fail solely on this ground. Your appeal will not be struck out simply because your new advocate did not file a notice of change of advocate, (unless the other party can demonstrate real prejudice which we don’t see).

You mentioned that you have only filed a notice of appeal, however, this action is merely the initial step. Remember, an appeal is considered instituted once the records and memorandum of appeal are filed. Therefore, you must strictly adhere to the requirement of filing the record of appeal and the memorandum of appeal within 60 days of lodging the notice of appeal or requesting a certificate of delay if additional time is needed. Missing this step will cause the appeal to collapse, as legally, it would not have come into existence. We believe your lawyer can provide you with further guidance on the next steps.