In Th Ecourt of Appeal At Nairobi & 1 other v Kenya Commercial Bank Limited & 1 other

The originating summons was served on Charterhouse Bank, not on the applicants, and the notice of motion of 31st August 2007 which produced the impugned orders was drawn to be served on Ochieng', Onyango, Kibet & Ohaga, the second respondent's new advocates, even if it may also have been served on the applicants. Whether advocates, by then no longer acting and not parties to the originating summons, could be ordered personally to pay the costs of an entire suit compromised by others was therefore arguable. So too was the refusal of their adjournment, since the undertaking covering their costs was given ten days after the order complained of.

Costs of the originating summons and the application were ordered against the applicants personally, in personam. As practising advocates, such an order would directly affect their practice, and the order did not state who was to receive the costs, since the parties to the originating summons were themselves to bear their own costs. The costs had not been taxed, and the Court declined to interfere with taxation; but if execution were to proceed before the intended appeal was determined, success in the appeal could be rendered nugatory. The nugatory limb was therefore satisfied in respect of execution only.

Having found both limbs of rule 5(2)(b) satisfied only in respect of the costs order, the Court tailored relief to the subsisting dispute. The general stay of proceedings had been abandoned because the security documents had been released. Interference with taxation was refused, as taxation is a distinct process and the appeal targeted the costs order itself. What remained capable of rendering the appeal nugatory was execution, so execution of the costs once taxed was stayed pending the intended appeal, with the costs of the application to abide the appeal.