DOROTHY K. KWONYIKE t/a LUGUYAN ENTERPRISES vs VICTORIA COMMERCIAL BANK LIMITED [2000] KECA 277 (KLR)
The bottom line
#In Kenya, a court order must be obeyed even if you think it's wrong - until a court sets it aside, judges won't hear your other applications.
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 applicant's pending application could be heard while the order of Mulwa, J. made on 9.3.00 remained unobeyed and had not been set aside.
- 2.Whether the correctness of a court order affects the obligation to comply with it.
Key legal issues
#Whether a subsisting court order must be obeyed regardless of its correctness.
Yes. Once made, an order binds and must be complied with whether right or wrong; a party who disputes it must pursue review or appeal, not unilateral non-compliance.
The court adopted as settled law the position in The Pharmacy and Poisons Board v Sipri Pharmaceuticals Limited & the Republic, that obedience to a court order does not depend on its correctness. Counsel for the applicant admitted the order of Mulwa, J. had not been obeyed, though he disputed whether it was a proper interpretation of an earlier original order made by Gacheche, CA. The court held that the lawful course is compliance, or setting the order aside by review or appeal.
What follows when a party seeks further relief while disobeying a subsisting order?
The court will not hear the application; it is taken out of the list until the order is obeyed or set aside.
Because the applicant had neither complied with nor applied to set aside the order of Mulwa, J., the court agreed with counsel for the respondent that the pending application could not be heard. The application was taken out of the list and stood over generally, with the costs of the day to the respondent. The ruling is procedural: the applicant may return to the list once the order is complied with or set aside, and nothing is decided on the merits of the underlying dispute.
Legal principles established
#- A subsisting court order must be obeyed whether it is right or wrong, unless and until it is properly set aside by way of review or appeal.
- A party who has not complied with a subsisting court order cannot have a further application heard until the order is complied with or set aside.
Court orders
#- 1.The present application is hereby taken out of today's list and stood over generally.
- 2.Today's cost to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Not expressly stated in the ruling; the matter comes before the Court of Appeal at Nairobi as Civil Application No. NAI. 79 of 2000 (UR.35/00).
Relief refused
#Hearing of the applicant's pending application on 12 April 2000
The order of Mulwa, J. made on 9.3.00 had not been complied with, nor set aside by way of review or appeal.
Costs
Today's cost 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.
no matter whether the order of Mulwa, J. be right or wrong, it must, unless properly set aside by way of review or an appeal, be complied with.
the present application cannot be heard until the order of Mulwa, J. is complied with or set aside.
The present application is hereby taken out of today's list and stood over generally. Today's cost to the Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DOROTHY K. KWONYIKE t/a LUGUYAN ENTERPRISES vs VICTORIA COMMERCIAL BANK LIMITED [2000] KECA 277 (KLR)", Case Analysis (2000). Civil Application No. NAI. 79 of 2000 (UR.35/00). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/277/eng@2000-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.