Eres N. V and Eres Enterprises Limtied v Maina Murage & Co. Advocates [2014] KECA 90 (KLR)
The bottom line
#Kenya's Court of Appeal refused to lift a Kshs 28.9 million security deposit condition because the company never paid it, losing its extension of time to 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 the single judge (Sichale, JA) was plainly wrong in conditioning the extension of time to file and serve the notice of appeal on the deposit of one half of Kshs. 57,793,600/- as security
- 2.Whether the reference by a successful applicant against part of a single judge's decision is maintainable
- 3.Whether leave to appeal is required under Rule 11(3) of the Advocates Remuneration Order notwithstanding Article 164(3) of the Constitution
Key legal issues
#Reference against part of a decision of a single judge by a successful applicant
The Court found the reference maintainable since maintainability was not contested, and considered it on the merits.
The Court observed this was a rare reference by a successful applicant, but since no contention was raised that a reference from part of a decision is not maintainable, it proceeded to consider the reference on its merits.
Whether the condition of deposit of security imposed by the single judge was plainly wrong
The Court held the order for security was not plainly wrong given the applicant was a Belgian company with no known assets in Kenya and the order protected the respondent from prejudice.
The single judge gave reasons: the applicant was a foreign company with no known Kenyan assets and the order was intended to save the respondent from possible prejudice once the appeal process commenced. Interference was unwarranted because a reference is not an appeal and disagreement with the discretion exercised is insufficient ground for disturbance.
Effect of non-compliance with the condition of extension of time and subsequent events
Non-compliance caused the extension order to lapse, and subsequent events (filing and striking out of an appeal) rendered the reference futile.
The applicants failed to deposit security within 30 days so the extension lapsed. They filed an appeal which was struck out, and a setting-aside application remained pending. Allowing the reference would neither reverse those events nor extend time, and would undermine the Court's own orders.
Whether leave to appeal is required under Rule 11(3) of the Advocates Remuneration Order notwithstanding the 2010 Constitution
The Court declined to determine the issue, holding it was unnecessary in the reference and should be left to the full Court hearing the appeal if raised.
The issue was not raised in the reference, full arguments had not been received, the single judge's finding that delay was sufficiently explained was not on reference, and the competence question should be decided by the Court dealing with the appeal if the occasion arises.
Legal principles established
#- A reference from a single judge's discretionary decision is not an appeal; the fact that the full Court would have exercised the discretion differently is not a sufficient ground for interference.
- A party who obtains a conditional extension of time but fails to comply with the condition cannot obtain relief from the full Court on the condition, and such conduct may amount to abuse of process.
- An important issue going to the competence of an appeal, not raised and fully argued in a reference, should be left for determination by the Court hearing the appeal.
Court orders
#- 1.The reference is dismissed
- 2.Costs awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Misc. Application No. 459 of 2008
- Jurisdiction invoked
- Rule 55 of the Court of Appeal Rules (reference from decision of a single judge), read with Rule 4 (extension of time)
Relief refused
#Variation or setting aside of the condition requiring deposit of one half of Kshs. 57,793,600/- as security imposed by the single judge
The order for security was not plainly wrong, the extension of time had already lapsed due to non-compliance, and allowing the reference would undermine the administration of justice and constitute abuse of process
Costs
The reference 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.
It is sufficient to state that a reference is not an appeal and the fact that the full Court would have exercised discretion differently is not a sufficient ground for interfering with the exercise of discretion by a single Judge.
The applicants failed to satisfy that condition with the result that the order for extension of time lapsed.
For those reasons, the reference is dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eres N. V and Eres Enterprises Limtied v Maina Murage & Co. Advocates [2014] KECA 90 (KLR)", Case Analysis (2014). Civil Application No. 16 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/90/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.