Taibjee and Bhalla Advocates v Kenya Commercial Bank Limited & 1 other
The bottom line
#Kenya's Court of Appeal let taxation of costs proceed but blocked the bank from recovering those costs from the advocates until their appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#What principles govern an application under rule 5(2)(b) of the Court of Appeal Rules for a stay pending an intended appeal?
The principles are well settled and two-fold: the applicant must first satisfy the court that the appeal or intended appeal is arguable; secondly, it must be demonstrated that if the application is refused, the results of the intended appeal, were it to succeed, would be rendered nugatory.
The court restated the two-limb test as settled law, citing Reliance Bank Limited v Norlake Investments Limited, and applied each limb to the facts before it. The enquiry is structured: arguability of the appeal or intended appeal is considered first, and the nugatory effect of refusing the application second. Both limbs must be satisfied before a stay issues.
Was the intended appeal arguable where mandatory orders, including personal liability for costs, were made against advocates who were not parties to the originating summons?
Yes. The intended appeal was arguable on whether applicants who, at the material time, were no longer advocates for the second respondent and were not parties to the originating summons could be ordered to pay the costs of the entire compromised suit, and on the refusal of their application for adjournment.
The court observed that the originating summons was served on the second respondent and not on the applicants, and that the notice of motion of 31st August 2007 was drawn to be served on the incoming firm, Ochieng’, Onyango, Kibet & Ohaga, rather than on the applicants. The undertaking for the applicants' costs by the new firm was given on 14th September 2007, ten days after the order, which made the refusal of the applicants' adjournment application arguable. The court expressly did not decide the point at that stage.
Would refusal of the stay render the intended appeal nugatory, and what stay should issue?
Yes, in part. Costs ordered in personam against the firm would certainly affect its practice, and as the parties to the originating summons were each to bear their own costs the order did not state who was to have them; the court therefore declined to interfere with taxation but stayed execution of the costs once taxed until the intended appeal is determined.
The court weighed the effect on the applicants' practice of a personal costs order, the fact that the order did not state who was to have the costs since the parties to the originating summons were each to bear their own costs, and the fact that the costs were untaxed. It preserved the taxing officer's role and deferred only execution, so the applicants remain exposed to taxation but not to recovery pending the intended appeal. Costs of the application were made costs in the intended appeal.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules for a stay pending an intended appeal must satisfy two conditions: the appeal or intended appeal must be arguable, and, if the application is refused, the results of the intended appeal, were it to succeed, must not be rendered nugatory.
- A costs order made in personam against a firm of advocates, in a suit where the parties themselves were each to bear their own costs and the order does not state who is to have the costs, may render an intended appeal nugatory and justify staying execution of the taxed costs pending the appeal.
Court orders
#- 1.Execution of the costs awarded against the applicants is stayed, once those costs are taxed, pending the filing, hearing and determination of the intended appeal.
- 2.Costs of the application are made costs in the intended appeal.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 626 of 2006 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings/execution pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taibjee and Bhalla Advocates v Kenya Commercial Bank Limited & 1 other", Case Analysis (2007). Civil Appli. Nai 234 of 2007 (UR 145/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/19/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.