Kamurasi v Accord Properties Limited & Another (Civil Appeal 3 of 1996)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Supreme Court held that filing two plaints with different defendants under the same registry number, without leave to amend or consolidation, together with counsel's misleading conduct of the proceedings, amounted to an abuse of the process of the court; the trial judge therefore rightly struck out the suit, and grounds 1, 4 and 7 failed. On the order condemning counsel in costs personally, the court accepted that an advocate must not be condemned in costs without being heard, a rule of natural justice. Nonetheless, given counsel's continuing abuse of process in conducting the appeal ex parte, the court dismissed the appeal and awarded the costs of the appeal to the respondents.
Outcome
Appeal dismissed; High Court order striking out the suit for abuse of process upheld; costs of the appeal awarded to the respondents
Facts
Counsel for the appellant filed two plaints in the High Court arising from the same matter, each naming a different set of defendants. The first, between Kamurasi Charles and Serugooti Estates Ltd and Christopher Ssekisambu, was filed on 25 January 1990 and given Civil Suit No. 46 of 1990. A second plaint, naming Accord Properties Ltd and Christopher Ssekisambu, was later slotted into the file under the same suit number, apparently without paying fees or obtaining leave to amend. The proceedings thereafter were conducted as if only one plaint existed. Counsel later abandoned a chamber application to amend and had the suit heard ex parte. On reviewing the record the trial judge found two plaints had been filed and treated counsel's silence as an abuse of process, struck out the second plaint, and ordered counsel to pay costs personally. On appeal, counsel's conduct continued, including delayed substituted service and advertisements naming an incorrect respondent.
Issues
- Whether the filing of two plaints bearing the same registry number but naming different defendants, without leave to amend or consolidation, amounted to an abuse of the process of the court warranting striking out the suit.
- Whether the trial judge erred in ordering counsel to pay the costs of the suit personally without first giving counsel an opportunity to be heard.
Orders
- Appeal dismissed.
- Costs of the appeal awarded to the respondents.
Rules and key headnotes
Legislation cited (5)
- Civil Procedure Act s.101
- Civil Procedure Rules Order 75 rules 10 and 30
- Civil Procedure Rules Order 9 rule 17(1)(a)
- Rules of the Supreme Court r.81(1)
- Rules of the Supreme Court r.1(3)
Cases cited (4)
- B.E.A. Timber Co. v Inder Singh Gill [1959] EA 163
- Abraham v Justin [1963] 2 All ER 402
- J.B. Kohli and Others v Bachulal Popatlal [1964] EA 219
- R v University of Cambridge (1723) 1 Str 557
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.