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Court of AppealDismissedCivil Application No. NYR. 24 of 2015 (UR 16/2015)· [2016] KECA 816 (KLR)

Bernard Gichobi Njira v Kanini Njira Kathendu & another [2016] KECA 816 (KLR)

Court of Appeal
3 February 2016
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,287 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a costs ruling, confirming you cannot stay a dismissal order and refundable costs rarely make an appeal futile.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nyeri (Waki, Nambuye and Kiage, JJ.A) on a notice of motion dated 29th June 2015 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2010. The applicant sought an omnibus order staying execution of the ruling of Limo J. of the High Court at Kerugoya delivered on 9th June 2015, staying further proceedings before the High Court, and staying taxation of a bill of costs before the Wanguru Principal Magistrate's Court in Wanguru PMCC No. 87 of 2014, pending an intended appeal. The dispute arose from the applicant's challenge to the power of a Resident Magistrate to tax, as opposed to assess, costs after he lost the underlying case. Limo J. had dismissed the applicant's reference under paragraph 11 of the Advocates Act, holding that the distinction between assessment and taxation was a matter of semantics and that the magistrate's action was anchored in Schedule VII of the Advocates Remuneration Order and Article 159(2)(d) of the Constitution. The Court of Appeal found the intended appeal arguable, noting widespread confusion over the applicable procedure for taxation or assessment of costs in subordinate courts, but held the nugatory limb failed: a negative dismissal order cannot be stayed, costs are repayable by refund, and the application was premature as no bill of costs had been submitted to the High Court. The court also expressed doubt about its power under Rule 5(2)(b) to issue orders directed at subordinate courts, and discouraged omnibus pleading. The application was dismissed with costs.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable given widespread confusion over taxation versus assessment of costs in subordinate courts.

Reasoning

The court noted considerable misunderstanding in the decided cases on taxation or assessment of bills of costs by subordinate courts and considered it desirable that the issues be finally settled by the Court of Appeal, satisfying the arguability limb.

p. 4
02

Whether the success of the intended appeal would be rendered nugatory

Holding

It would not; costs are repayable by refund and the application was premature as no bill of costs had been submitted for taxation before the High Court.

Reasoning

No allegation was made that the respondents were incapable of refunding any costs paid, so nothing irreversible would occur. Execution was also a distant possibility since no bill had been submitted to the High Court for taxation, making the application premature.

p. 4

Legal principles established

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  • There can be no stay of execution of a negative dismissal order.
  • An omnibus single prayer combining multiple distinct orders in a Rule 5(2)(b) motion is objectionable drafting.
  • It is doubtful the Court of Appeal has jurisdiction under Rule 5(2)(b) to grant orders directed at subordinate courts.
  • Under Rule 5(2)(b) the applicant must satisfy the twin principles of arguability and nugatory-ness.
  • Refundability of payment negates nugatory-ness for stay purposes.

Court orders

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  1. 1.The application dated 29th June 2015 be and is hereby dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 75 and Rule 75(4)
  • Appellate Jurisdiction Actgeneral jurisdiction provisions
  • Advocates ActParagraph 11
  • Advocates Remuneration OrderParagraph 10; Paragraph 11; Paragraph 11(4); Schedule VII
  • Civil Procedure Act, 2010Section 27
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • Western College of Arts & Applied Sciences v. Oranga & Others
    (1976) KLR 63
  • Exclusive Estates Ltd v. Kenya Posts and Telecommunications Corporation & Another
    (2005) 1 EA 53
  • Peter Njuguna Njoroge vs. Julius Naraniklak Ologolimot
    [2010] KLR
  • Dalmas Okach Randa vs. Peter Lolwe Ombo
    [2013] KLR
  • Margaret Kivutha Mwilu vs. Kioko Harrison & another
    [2015] KLR
  • Joreth Limited vs. Kigano & Associates Advocates
    Civil Appeal No. 66 of 1999
  • Safaricom Ltd vs. Ocean View Beach Hotel Ltd & 2 others
    Civil Application No. 327 of 2009 (UR 255/2009)
  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others
    [2013] eKLR
  • David Morton Silverstein v Atsango Chesoni
    [2002] eKLR
On appeal from
High Court of Kenya at Kerugoya
H.C. Misc./Reference Application No. 4 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Gichobi Njira v Kanini Njira Kathendu & another [2016] KECA 816 (KLR)", Case Analysis (2016). Civil Application No. NYR. 24 of 2015 (UR 16/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/816/eng@2016-02-03

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