Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appli. Nai No. 171 of 2008 (UR 108/2008)· [2008] KECA 99 (KLR)

Peter Kimani Kairu T/A Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2008] KECA 99 (KLR)

Court of Appeal of Kenya
9 October 2008
682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused enforcement of a KSh 31 million judgment against an advocate, but only if he refunded his client's money within 14 days.

What this practically means

#

Executive summary

#
This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi in a motion under rule 5(2) of the Court of Appeal Rules seeking stay of execution of a High Court ruling by Kimaru J dated 4 June 2008 in H.C.C.S. No. 39 of 2007. That ruling allowed the respondents' application for summary judgment against the applicant advocate for shs.2,500,000 and Euros 286,000 with costs and interest, a decretal sum said at the bar to exceed shs.31,000,000. The dispute arose from an aborted purchase of L.R. No. 3734/348, Othaya Road, Nairobi, in which the applicant, instructed by the respondents, remitted the purchase price but the sale was never consummated, leading to a claim for refund. The applicant's intended appeals raised whether an advocate-client contract is statutory, whether disputes thereon must proceed under Order 52 Rule 4(2) of the Civil Procedure Rules, and whether the superior court had jurisdiction. The court found the appeals arguable without deciding them, and found the nugatory aspect satisfied given the applicant's offer to refund monies less professional fees and the embarrassment and irreparable professional harm execution would cause him, applying Oraro and Rachier Advocates v Co-operative Bank of Kenya Ltd. The respondents' counsel conceded in those terms. The court allowed the stay on condition of payment within 14 days, with the application standing dismissed in default, and costs of the application in the appeals. This ruling binds subordinate courts and the High Court on the rule 5(2)(b) principles it articulates.

Key legal issues

#
01

Arguability of the intended appeals

Holding

The court was satisfied, without deciding the merits, that the appeals were arguable and not frivolous

Reasoning

The memoranda of appeal raised whether the advocate-client contract is a statutory one and whether disputes thereon must be dealt with under Order 52 Rule 4(2) of the Civil Procedure Rules, and whether the superior court had jurisdiction over the suit. On consideration of these grounds the court found the appeals arguable without deciding them.

p. 2
02

Whether success in the appeals would be rendered nugatory absent stay

Holding

Nugatory aspects were made out given the applicant's offer to refund monies less fees and expenses, and the embarrassment and irreparable loss execution would cause an advocate in his profession

Reasoning

The court took into account that the applicant is a senior advocate who offered to refund all monies paid by the respondents less professional fees and disbursements in the aborted sale, that execution would embarrass him and cause irreparable loss to his business and profession, and that respondents' counsel offered to accept the refund and conceded the application on those terms.

p. 2

Legal principles established

#
  • Rule 5(2)(b) relief requires the applicant to demonstrate that the intended appeal is arguable and that success in it will be rendered nugatory if the orders sought are not granted
  • In assessing nugatory aspects, the court may consider an applicant's offer to refund monies and the irreparable harm execution would cause to an advocate's professional standing
  • The court may grant conditional stay, with automatic dismissal of the application if conditions are not met

Court orders

#
  1. 1.Stay of execution of the ruling and order of Kimaru J dated 4 June 2008 granted as prayed in the motion dated 14 July 2008, pending the hearing and determination of Civil Appeals Nos. 175 and 176 of 2008
  2. 2.Stay conditional upon the applicant paying to the advocates for the respondents the sum stated in the ruling within 14 days
  3. 3.In default of payment, the application to stand dismissed
  4. 4.Costs of the application to be in the appeals

Authorities

#

Legislation

  • Court of Appeal Rulesrule 5(2)
  • Civil Procedure RulesOrder 52 Rule 4(2)

Cases cited (1)

  • Oraro and Rachier Advocates v. Co-operative Bank of Kenya Ltd
    [1999] 1 EA 236
On appeal from
High Court of Kenya at Nairobi
H.C.C.S. No. 39 of 2007
Jurisdiction invoked
Rule 5(2) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Kimani Kairu T/A Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2008] KECA 99 (KLR)", Case Analysis (2008). Civil Appli. Nai No. 171 of 2008 (UR 108/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/99/eng@2008-10-09

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