Celestine Mwende Munene v Henry Athimba Kurauka [2019] KECA 487 (KLR)
The bottom line
#The Court of Appeal refused to pause payment of taxed legal fees because the client never formally challenged the taxation and the money could be refunded if her appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The court expressed provisional scepticism about the arguability of the appeal because the applicant never filed a reference to challenge the taxation of the advocate/client costs, and the taxed costs were simply adopted by the ELRC in the ruling now targeted by the out-of-time Notice of Appeal.
The court declined to delve into the merits, which it said is the mandate of the Bench that will hear the appeal. However, it noted the gravamen was a dispute over advocate/client fees that had been taxed, that the order of taxation was never challenged by way of a reference, and that the taxation order was subsequently adopted by the court in the ruling now the subject of a Notice of Appeal apparently filed out of time. On that basis it was sceptical of arguability.
Whether the appeal would be rendered nugatory if stay were refused
No. The decretal sum is a money decree and the respondent, an advocate of over twenty years standing, stated he is able and willing to refund it if the appeal succeeds; the applicant also won the underlying suit in which the fees arose.
The applicant alleged imminent execution via a notice to show cause, but the respondent, an advocate of over twenty years standing, gave an undertaking of ability and willingness to refund the entire sum should the intended appeal succeed. Being a money decree, and given the applicant succeeded in the underlying employment suit for which the fees were charged, the court found no prejudice would flow from payment, so the nugatory test failed.
Legal principles established
#- An applicant for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin tests that the appeal is arguable and not frivolous, and that if stay is not granted the appeal will be rendered nugatory.
Court orders
#- 1.The application for stay of execution pending appeal is dismissed
- 2.No order as to costs, there having been no appearance by the respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Misc. Appl. No. 153 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution, or orders, pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celestine Mwende Munene v Henry Athimba Kurauka [2019] KECA 487 (KLR)", Case Analysis (2019). Civil Application No NAI 43 of 2019 (UR 49 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/487/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.