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Court of AppealAllowedCivil Application No. 46 of 2020· [2020] KECA 139 (KLR)

V.chokaa & Co. Advocates v Local Authorities Provident Fund (lapfund)

Court of Appeal
4 December 2020
RNR. N. NambuyeHOHannah OkwenguJMJ. Mohammed
1,084 words in judgment
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The bottom line

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Kenya's Court of Appeal paused collection of a Kshs. 54.8 million debt against an advocate, finding his appeal had merit and money might vanish first.

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 (Nambuye, Okwengu and J. Mohammed, JJ.A) on a notice of motion under Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, seeking stay of execution of orders made by the High Court at Kisii (Ougo, J) on 11th March 2020 in Misc. Civil Application No. 36 of 2017. The applicant, an advocate, had obtained judgment against LAPFUND for Kshs. 54,804,907 on a taxed advocate/client bill of costs and had commenced garnishee proceedings against Kenya Commercial Bank Ltd. The High Court set aside that judgment, the certificate of taxation and all consequential orders, and directed that the bill of costs be retaxed afresh. The Court of Appeal applied the settled twin test for Rule 5(2)(b) relief: the intended appeal must be arguable and, if successful, must not be rendered nugatory by the denial of a stay. The court found the five draft grounds of appeal arguable, including interference with taxation without demonstrating error by the taxing master and a denial of the right to be heard. On nugatory-ness, it found a real risk that garnishee funds might be withdrawn, defeating execution if the appeal succeeded. The application was allowed and stay of execution granted as prayed, with costs in the appeal. The ruling does not disturb the High Court decision; that is for the intended appeal.

Key legal issues

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Test for grant of stay under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must satisfy the twin principles of arguability and nugatory-ness; both were satisfied on the facts.

Reasoning

The court restated the settled two-pronged test from Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd. On arguability, the draft memorandum raised five grounds including improper determination of an application, interference with taxation without showing error by the taxing master, and a hearing denial. On nugatory-ness, the funds held under garnishee proceedings risked withdrawal, defeating execution if the appeal later succeeded. Both limbs having been met, stay was granted.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that the appeal will be rendered nugatory if the orders sought are not granted.

Court orders

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  1. 1.Stay of execution of the orders issued by the High Court at Kisii (Ougo, J) on 11th March 2020 granted as prayed
  2. 2.Costs shall be in the appeal
On appeal from
High Court of Kenya at Kisii
Misc. Civil Application No. 36 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "V.chokaa & Co. Advocates v Local Authorities Provident Fund (lapfund)", Case Analysis (2020). Civil Application No. 46 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/139/eng@2020-12-04

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