MOSES KIPNGETICH KURGAT vs THE DISCIPLINARY COMMITTEE OF THE LAW SOCIETY [1999] KECA 165 (KLR)
The bottom line
#The Court of Appeal refused to pause disciplinary penalties against a lawyer who skipped his own hearing, confirming tribunals can proceed in a party's absence.
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 Court should exercise its discretion under rule 5(2)(b) of the Court of Appeal Rules to grant a stay of execution of the superior court's order pending an intended appeal
- 2.Whether the applicant's complaint of being condemned unheard and the Committee's refusal of an adjournment raised arguable points
- 3.Whether alleged contempt of the superior court's order could be raised before the Court of Appeal
- 4.Whether the effect of section 62(1) of the Advocates Act on suspension of execution needed to be determined
Key legal issues
#Whether the applicant was condemned unheard when the Disciplinary Committee proceeded in his absence and declined an adjournment
No arguable point arose; the applicant knowingly chose to attend other business on the hearing date and the Committee was entitled to refuse the adjournment sought by counsel who was not adequately briefed.
The applicant was fully aware of the hearing date of 14th June 1996 but travelled to Mombasa to sit as a member of the Kenya Industrial Property Office, leaving counsel to seek an adjournment without adequate briefing. The Court regarded this conduct as regrettable, found no error in the Committee's refusal of the adjournment, and held the natural-justice complaint unarguable.
Whether alleged contempt of the superior court's stay order could disentitle the applicant from relief in the Court of Appeal
Contempt of a superior court's orders must be raised in that court; the Court of Appeal can only punish contempt of itself, so the objection in limine was misconceived as a basis for refusing discretion here.
The respondent argued that the applicant's appearance before the magistrate's court after the stay was set aside showed he did not deserve the Court's discretion. The Court held that any such contempt falls to be dealt with by the superior court whose orders were allegedly breached, as the Court of Appeal's contempt jurisdiction is confined to its own orders.
Whether the Court should grant a stay of execution under rule 5(2)(b) pending the intended appeal
The discretion was refused on the facts, having regard to the applicant's conduct before the Disciplinary Committee, though the refusal does not bar the intended appeal.
The Court weighed the facts found by the Disciplinary Committee - dishonoured cheques, an unrefunded Shs.600,000, and the applicant's failure to present himself for hearing - and concluded that the behaviour disentitled him to the discretionary relief, while expressly leaving him free to lodge and pursue the intended appeal.
Legal principles established
#- Alleged contempt of a superior court's orders cannot be raised for the first time in the Court of Appeal; the Court of Appeal only punishes contempt of itself.
- A Disciplinary Committee is entitled to grant or refuse an adjournment, and refusal does not of itself amount to condemning a party unheard where the party chose to absent himself.
Court orders
#- 1.The application for stay of execution is dismissed with costs
- 2.The applicant is not shut out from lodging and pursuing his intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.Misc.A No. 796 of 1997
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution in an intended appeal)
Relief refused
#Stay of execution of the order of the superior court (Aluoch, J) dated 3rd June 1999
On the facts before the Disciplinary Committee and the applicant's conduct in absenting himself from the hearing, the Court was not inclined to exercise its discretion in his favour
Costs
This application is dismissed with costs.
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.
If there is any contempt of the orders of the superior court the matter can only be raised in the superior court and not in this Court. We can only exercise our jurisdiction to punish for contempt of this Court.
The Committee was entitled to grant or refused an adjournment.
This does not mean that we are shutting out the applicant from lodging and pursuing his intended appeal. This application is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MOSES KIPNGETICH KURGAT vs THE DISCIPLINARY COMMITTEE OF THE LAW SOCIETY [1999] KECA 165 (KLR)", Case Analysis (1999). Civil Application No. 163 of 1999 (62/99 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/165/eng@1999-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.