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Court of AppealDismissedCivil Misc Appl No. 330 of 2000· [2000] KECA 92 (KLR)

Nyamogo & Nyamogo Advocates v Moses Kipkolum Kogo [2000] KECA 92 (KLR)

Court of Appeal
20 December 2000
ROR. S. C. OmoloSBS. E. O. BosireEOE. O. O'Kubasu
1,435 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop a KShs.120,000 payment because the law firm's appeal had no arguable point.

What this practically means

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Executive summary

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Nyamogo & Nyamogo Advocates, counsel for Moses Kipkolum Kogo in a personal injuries suit (Nairobi HCCC No. 4925 of 1989), applied to the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court ruling (Ang'awa J, 12th October 2000) declining to review a judgment ordering the firm to pay over KShs.120,000/- of the decretal sum to the respondent. The firm argued that its bills had been taxed at KShs.146,769/- (High Court) and KShs.100,000/- (appeal), that the trial Judge's disallowance of KShs.139,000/- as a double-claim was erroneous, and that it was entitled to party and party costs and part of the instruction fees. The Court restated the two-limb test for rule 5(2)(b): the applicant must show an arguable appeal and that it will be rendered nugatory without the orders sought, the discretion being exercised on evidence and sound legal principles. The Court found no arguable point: the taxations had not been challenged by either party, the applicant's complaints were matters for taxation proceedings, and the intended appeal would mainly concern the correctness of the trial Judge's arithmetical calculations of the account. The nugatory limb was not reached. The application was dismissed with costs assessed at KShs.5,000/-, the interim stay of 27th November 2000 was vacated, and the KShs.120,000/- deposited in the High Court was ordered released to the respondent forthwith.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable; the applicant failed to show where the trial Judge erred in declining to review her judgment, and the appeal would mainly concern the correctness of her arithmetical calculations of the account.

Reasoning

The Court held that the costs due to the applicant had been taxed and neither party had challenged the taxation, so the propriety of the taxations could not be raised in the intended appeal. The applicant's claims to party and party costs and to part of the instruction fees were arguments he could have raised in taxation proceedings. The original suit was mainly for an account, which was given, and the Judge found KShs.120,000/- due. Having failed to show error in the refusal to review, no arguable point existed.

p. 3
02

Whether the intended appeal would be rendered nugatory without a stay

Holding

Having found no arguable point, the Court found it unnecessary to consider the nugatory limb of the test.

Reasoning

The rule 5(2)(b) jurisdiction requires an applicant to satisfy both principles. Since the applicant failed on the first (arguability), the Court declined to examine the second (nugatory) limb, as a failure on either limb is fatal to the application.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two principles: that the appeal or intended appeal is arguable, and that it will be rendered nugatory unless the orders sought are granted.
  • The discretionary jurisdiction under rule 5(2)(b) must be exercised on the basis of evidence and sound legal principles.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application assessed at KShs.5,000/- to the respondent
  3. 3.The interim order of stay granted on 27th November 2000 is vacated
  4. 4.The KShs.120,000/- deposited in the High Court pursuant to the interim order shall be released to the respondent forthwith

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder XLIV rule 1
On appeal from
High Court of Kenya at Nairobi
H.C.C.S. No. 1036 of 2000 (O.S.)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyamogo & Nyamogo Advocates v Moses Kipkolum Kogo [2000] KECA 92 (KLR)", Case Analysis (2000). Civil Misc Appl No. 330 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/92/eng@2000-12-20

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