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Court of AppealDismissedCivil Application No. 137 of 2016 (UR.107/2016)· [2016] KECA 80 (KLR)

Omar Farouk Osman v Pinnacle (K) Travels & Safaris Limited & 5 others [2016] KECA 80 (KLR)

Court of Appeal
25 November 2016
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a lawsuit for a litigant who had ignored existing court orders, confirming obedience to orders comes first.

What this practically means

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Executive summary

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Omar Farouk Osman, a Somali national and official of the African Union Commission and Secretary General of the Eastern African Journalists Association, moved the Court of Appeal under section 3A of the Civil Procedure Act and Rule 5(2)(b) of the Court of Appeal Rules for stay of proceedings in High Court Civil Case No. 528 of 2015 and of the High Court orders of 30th October 2015, 29th February 2016 and 3rd May 2016, pending an intended appeal against the ruling of Sewe, J. delivered on 20th May 2016 declining to hear his review application before compliance with orders requiring him to deposit three passports and Kshs. 1.8 million as security. The underlying suit concerns a debt arising from credit facilities extended by the respondent travel company to the Association for a conference. The applicant contended he enjoyed African Union immunity, that the debt was the Association's, and that the security was excessive and made without a hearing. The Court of Appeal (Okwengu, Sichale and ole Kantai, JJ.A) held the applicant was not coming to court with clean hands, having failed to comply with subsisting orders and having sought review rather than appeal against the initial security orders. Following Shimmers Plaza and Hadkinson, the court held that staying proceedings would aid evasion of uncomplied-with orders, contrary to the rule of law. The court also found the intended appeal not arguable, being anchored on unappealed orders, and held the appeal would not be rendered nugatory. The motion was dismissed with costs. The judgment binds lower courts on the consequences of disobedience of court orders for access to discretionary relief.

Key legal issues

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01

Twin principles for grant of stay of proceedings pending appeal under Rule 5(2)(b)

Holding

Stay of proceedings can only issue where the applicant demonstrates an arguable appeal and that the appeal would be rendered nugatory absent the stay.

Reasoning

The court restated the settled test: an applicant must show an arguable appeal, not one that must necessarily succeed, and that the appeal would be rendered nugatory if stay is not granted. The applicant failed on both limbs: his appeal was anchored on unappealed initial orders, and the appeal would not be rendered nugatory if the proceedings continued before the High Court.

p. 4
02

Effect of non-compliance with court orders on entitlement to discretionary relief

Holding

A party in disobedience of subsisting court orders is not entitled to a stay of proceedings; granting one would subvert the administration of justice.

Reasoning

The applicant had not deposited his passports or the security ordered by the High Court and gave no reason. The court held that staying the proceedings would aid the applicant to escape compliance with orders not set aside, which is inimical to the proper administration of justice and respect for the rule of law. The applicant also did not come to court with clean hands, having sought review rather than appealing the initial orders.

p. 3
03

Arguability of the intended appeal where the foundational orders were not appealed

Holding

Where an appealed order is anchored on earlier orders not appealed against, the appeal cannot be said to be arguable.

Reasoning

The applicant appealed only the order of 20th May 2016, not the initial orders of 30th October 2015 and 26th February 2016 upon which it was anchored. Without an appeal against the foundational orders, the appeal could not really be said to be arguable, so the first limb of the Rule 5(2)(b) test failed.

p. 4

Legal principles established

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  • A court will not exercise its discretion to stay proceedings in favour of a litigant who is in disobedience of outstanding court orders.
  • Obedience of court orders is mandatory and not a matter of choice.

Court orders

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  1. 1.Dismissal of the applicant's notice of motion dated 27th May 2016
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    Civil Appeal No. 33 of 2012, eKLR
  • Hadkinson vs Hadkinson
    [1952] 2 All ER 567
  • Ismael Kagunyi Kande vs Housing Finance Company Ltd
    Civil Appeal No. 156 of 2006
  • Reliance Bank Ltd vs Norlake Investment Ltd
    [2002] 1 EA 227
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 528 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar Farouk Osman v Pinnacle (K) Travels & Safaris Limited & 5 others [2016] KECA 80 (KLR)", Case Analysis (2016). Civil Application No. 137 of 2016 (UR.107/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/80/eng@2016-11-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.