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Court of AppealPartially AllowedCivil Application No. Nai. 118 of 2005 (UR. 67/2005)· [2005] KECA 139 (KLR)

Najib Balala & 13 others v David M Githere & 9 others [2005] KECA 139 (KLR)

Court of Appeal of Kenya
16 September 2005
EOE. O. O'KubasuEGE. M. GithinjiWDW. S. Deverell
1,672 words in judgment
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The bottom line

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The Court of Appeal paused collection of Shs 1.5 million in legal fees — but only if the losing side deposited the money within 30 days.

What this practically means

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Executive summary

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The applicants, officials and members of the dissolved Mombasa Branch management committee of the Kenya National Chamber of Commerce and Industry, applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution pending an intended appeal against the ruling of Mwera J dated 27th April 2005 dismissing their application for enlargement of time within which to file an objection to a bill of costs taxed at Shs.1,564,630/=. The Court of Appeal (O'Kubasu, Githinji and Deverell JJ.A) restated the familiar Rule 5(2)(b) principles: arguability of the intended appeal, the nugatory aspect, and absence of undue prejudice. It held that stay of execution of the Mwera J decision itself was misconceived since that decision made no costs award and was not executable, and the court therefore treated the application as one for stay of execution of the taxed costs. It doubted whether the intended appeal was appealable at all, since the Advocates Remuneration Order makes no provision for appeal against a Rule 11(4) enlargement decision and the order was not made under the Civil Procedure Rules. The grounds identified by counsel did not arise from the enlargement decision. On the nugatory test, the court noted the applicants had not offered the undisputed costs and KNCCI's unchallenged ownership of property worth Shs.78 million. The court allowed the application on terms: deposit of Shs.1,567,380/= in a joint interest-bearing account within 30 days, costs in the appeal, and dismissal of the application with costs to the respondents in default.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The grounds counsel identified (no decree capable of execution, nullity of warrants, entitlement of non-KNCCI respondents to costs) do not arise from the decision refusing enlargement of time; the appeal could only question the exercise of discretion, and the appealability of that decision was itself doubtful.

Reasoning

The court observed that the intended appeal targets Mwera J's discretionary refusal to enlarge time, not the taxation or the costs order. The identified grounds attacked the execution process rather than the discretion exercised. Further, the Advocates Remuneration Order makes no provision for appeal against a Rule 11(4) enlargement decision, and section 75 of the Civil Procedure Act with Order XLII did not appear to cover it, rendering appealability doubtful even with leave.

p. 3
02

Whether the intended appeal would be rendered nugatory without stay

Holding

It was doubtful the appeal would be rendered nugatory: KNCCI is at least entitled to some costs, the applicants did not offer the undisputed costs, and the respondents' asserted assets worth Shs.78 million were undisputed.

Reasoning

The court reasoned that if the appeal succeeded, the appellate court would only enlarge time for filing the objection; quantum would still be determined by a judge. The applicants themselves brought the respondents to court and only disputed the instruction fees, the rest having been taxed by consent. Given KNCCI's undisputed ownership of valuable property and the applicants' failure to offer the undisputed costs, the nugatory test was not satisfied.

p. 4

Legal principles established

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  • Before the Court of Appeal exercises its discretion to grant a stay of execution, injunction or stay of proceedings pending appeal under Rule 5(2)(b), the applicant must demonstrate that the intended appeal is arguable, that it will be rendered nugatory unless stay is granted, and that the respondent will not suffer undue prejudice.
  • The Advocates Remuneration Order does not provide a right of appeal to the Court of Appeal against a judge's decision on an application to enlarge time under Rule 11(4), and such an order, not being made under the Civil Procedure Rules, is prima facie not appealable even with leave.
  • Stay of execution cannot be granted in respect of a decision that made no costs award and is not capable of execution; where the true executable order is a taxation decision, the court may treat the application as seeking stay of execution of the taxed costs.

Court orders

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  1. 1.Application for stay of execution allowed on terms that the applicants deposit Shs.1,567,380/= claimed as costs in an interest-bearing bank account in the joint names of the respective advocates for the parties within 30 days from the date of the ruling
  2. 2.Costs in the appeal
  3. 3.In default of the deposit, the application shall stand dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Advocates Remuneration OrderRule 11(2)
  • Advocates Remuneration OrderRule 11(3)
  • Advocates Remuneration OrderRule 11(4)
  • Civil Procedure Actsection 75
  • Civil Procedure RulesOrder XLII Rule 1(1)
  • Civil Procedure RulesOrder XLII Rule 1(2)
  • Civil Procedure RulesOrder XLII Rule 1(3)
On appeal from
High Court of Kenya at Mombasa
Misc. Appli. No. 20 of 2004
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 (6)

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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, "Najib Balala & 13 others v David M Githere & 9 others [2005] KECA 139 (KLR)", Case Analysis (2005). Civil Application No. Nai. 118 of 2005 (UR. 67/2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/139/eng@2005-09-16

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