KSC International Limited (Under Receivership) & 3 others v Gichuki King’ara & Co. Advocates [2019] KECA 703 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Kshs.19 billion legal fees dispute, confirming taxation counts as execution when a stay is sought.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal against the ruling of 12th June 2018 is arguable
The intended appeal was arguable: the issues whether the advocates' retainer was for each applicant individually and whether the original retainer agreement was overtaken by events raised questions whether the judge's conclusions were supported by law and facts.
The court reiterated that arguability is not synonymous with success and cited the standard that an arguable appeal raises at least one bona fide issue deserving consideration. The applicants identified two grounds - the enforceability/variation of the retainer agreement and whether only the 1st applicant instructed the respondent - which required reconsideration and evaluation of facts and law, satisfying the arguability limb without the court making any definitive determination.
Whether the success of the intended appeal would be rendered nugatory if stay of proceedings is not granted
The nugatory limb was satisfied because taxation of the Kshs.19 billion bill of costs is a step towards execution, and execution of such a colossal amount would render the intended appeal otiose.
Although the respondent said no execution process was in place, the court held that taxation of a bill of costs is a step towards execution. Given the colossal amount at stake (Kshs.19 billion), the applicants would be prejudiced if taxation proceeded, and the risk of execution thereafter was real, such execution rendering the intended appeal otiose. The court therefore found the twin conditions satisfied and that it was fair and just to issue the orders.
Legal principles established
#- An applicant for stay of proceedings under rule 5(2)(b) must satisfy the twin principles of arguability and nugatory-ness, with the interest of justice as the guiding principle.
- An arguable appeal need only raise at least one bona fide issue deserving consideration; arguability is not synonymous with success.
Court orders
#- 1.A stay of proceedings in Nairobi High Court (Commercial & Tax Division) Miscellaneous Application numbers 294, 295 and 297 of 2017 shall issue pending the hearing and final determination of the applicants' appeal to the Court of Appeal against the ruling and order of the High Court delivered on 12th June 2018
- 2.The Deputy Registrar of the High Court shall ensure that appropriate proceedings are availed to the applicants to facilitate the filing of the appeal, and the appeal shall be filed within 60 days failing which the order of stay shall lapse unless otherwise extended by the Court
- 3.The costs of the application shall abide by the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Application No. 294 of 2017
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KSC International Limited (Under Receivership) & 3 others v Gichuki King’ara & Co. Advocates [2019] KECA 703 (KLR)", Case Analysis (2019). Civil Application No. 220 of 2018 (UR 175/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/703/eng@2019-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.