Peter Kimani Kairu T/A Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2008] KECA 99 (KLR)
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
#Key legal issues
#Arguability of the intended appeals
The court was satisfied, without deciding the merits, that the appeals were arguable and not frivolous
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.
Whether success in the appeals would be rendered nugatory absent stay
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
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.
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.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.Stay conditional upon the applicant paying to the advocates for the respondents the sum stated in the ruling within 14 days
- 3.In default of payment, the application to stand dismissed
- 4.Costs of the application to be in the appeals
- 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.