National Bank of Kenya Ltd v Edward Maina Njanga T/A Maina Njanga & Co. Advocates [2005] KECA 148 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a bank from paying Shs.17 million in legal fees because a valid fee objection was still pending, so the real amount owed wasn't settled yet.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court was satisfied the intended appeal raised several arguable issues of law, including whether summary judgment can be entered for an advocate on certificates of taxation while an objection to taxation is pending.
The Bank contended that the claim was not liquidated because a Notice of Objection to taxation was pending; that the certificates of costs were not final as to amount; and that the superior court misconstrued section 51(2) of the Advocates Act by entering summary judgment before the objection was determined. The Court found these raised issues of law that were undoubtedly arguable.
Whether the appeal would be rendered nugatory absent a stay
The Court held the appeal would be rendered futile and it would be unjust to require the Bank to pay the whole decretal sum before determination of the appeal or the pending objection, noting the fees might be substantially reduced on objection.
The decretal amount was large; the Bank had already paid a substantial portion; the Advocate's assets (a house worth about Shs.10,000,000 under construction) might not be easily realized on refund; and crucially, the decree was based on certificates of taxation subject to a pending objection under the Advocates' (Remuneration) Order, so the fees payable might be substantially reduced. Paying the whole sum would defeat the Bank's statutory right of objection.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the court that the intended appeal is arguable and that, if execution is not stayed, the appeal if successful will be rendered nugatory.
- What may render the success of an appeal nugatory must be considered within the circumstances of each particular case.
- In a decree for payment of money, inability of the other side to refund the decretal sum is not the only factor that may render the success of an appeal nugatory.
- The ability of a judgment debtor to refund a decretal sum is not the sole consideration; the difficulty of realizing assets by the time the appeal is determined is also relevant.
Court orders
#- 1.Stay of execution of the decree of the High Court at Mombasa in H.C.C.C. No. 180 of 2004 pending the hearing and determination of the intended appeal
- 2.Costs of the application to be costs in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 180 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya Ltd v Edward Maina Njanga T/A Maina Njanga & Co. Advocates [2005] KECA 148 (KLR)", Case Analysis (2005). Civil Appli NAI 173 of 2005 (105/05 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/148/eng@2005-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.