Prime Communications Limited v Odhiambo Oronga & Company Advocates [2018] KECA 753 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that clients who ignore court orders while seeking further court help will lose, and appeals only succeed if they target the right decision.
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 appeal attacked the orders of 26th April 2017, under which the Judge struck out the appellant's application as an abuse of process, or only the orders of 8th March 2017, against which no appeal was lodged
- 2.Whether the learned Judge erred in conditioning leave to file a Reference on payment of Kshs. 228,500/- before hearing the dispute on the merits and before resolving the retainer dispute
Key legal issues
#Scope of the appeal: which orders were challenged
The appeal, which targeted the 8th March 2017 conditional payment order, could not succeed because no appeal was filed against those orders; the only decision under appeal was that of 26th April 2017, which the memorandum did not attack.
The Notice of Appeal challenged only the decision of 26th April 2017, by which the Judge struck out the application for non-compliance with the 8th March conditional order. The Memorandum of Appeal's 12 grounds were directed at the 8th March orders, notably the payment condition and the unresolved retainer dispute. Since no appeal lay against the 8th March orders, the Court of Appeal found no basis to interfere with the ruling actually appealed from.
Exercise of discretion in granting a conditional reference out of time
The Judge properly exercised his discretion in granting leave to file a reference out of time on condition of payment of the undisputed sum of Kshs. 228,500/-; no abuse of discretion was shown.
On 8th March 2017 the Judge recognized the appellant's right to be heard on the retainer complaint and on the reference, but conditioned leave on payment of an undisputed sum to the advocate. The appellant acknowledged the condition was not met, yet sought a further indulgence from the same court. The Judge was entitled to decline to entertain an application filed and pursued in defiance of his own subsisting orders and to strike it out as an abuse of process.
Non-compliance with court orders and abuse of process
An applicant who files and pursues an application without complying with a subsisting conditional order, and without a stay, abuses the process of the court.
Counsel for the appellant confirmed before the Judge that the payment condition of 8th March 2017 had not been met, and there was no stay of those orders. The Judge held there was no reason to adjourn an application filed in breach of a specific condition, deeming it an abuse of process and striking it out with costs. The Court of Appeal found no fault with that approach and no ground of appeal attacking it.
Legal principles established
#- A party who seeks the exercise of a court's discretion in its favour cannot ignore subsisting orders of that court; non-compliance renders the application an abuse of process liable to be struck out.
- A court is entitled to grant leave to file a reference against a taxing master's decision out of time on conditions, including payment of an undisputed sum, as an exercise of discretion.
Court orders
#- 1.Appeal dismissed with costs to the respondent
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 Nairobi
- Misc. Cause No. 44 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal against ruling and order of Onguto, J.)
Relief refused
#The appellant's appeal against the striking out of its Chamber Summons and against the conditional order for payment of Kshs. 228,500/-
No appeal was lodged against the orders of 8th March 2017, and the Memorandum of Appeal raised no attack on the findings of 26th April 2017; the Judge's conditional reference order was a proper exercise of discretion
Costs
Appeal 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.
We have considered the whole record and all the material before us and we can see no merit in this appeal which we now proceed to dismiss with costs to the respondent.
the learned Judge found that it was wrong for the appellant to choose to ignore orders made by that court and still seek exercise of discretion by the same court.
The learned Judge was entitled to make the order on conditional reference. He exercised his discretion in doing so and we do not detect any abuse of discretion in the way the learned Judge dealt with the matter.
The complaints relate to orders made on the 8th March, 2017 where there was no appeal taken by the appellant.
Issues in the judgment
#The judgment states the appeal was heard 'on 7 th December, 2012', which is inconsistent with the appeal timeline (orders of March and April 2017, judgment delivered 23rd February 2018); the year appears to be an error for 2017.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prime Communications Limited v Odhiambo Oronga & Company Advocates [2018] KECA 753 (KLR)", Case Analysis (2018). Civil Appeal No. 221 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/753/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.