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Court of AppealDismissedCivil Application No. NYR. 23 of 2016

Christine Wangari Chege v John Juma Weroba & 3 others [2021] KECA 834 (KLR)

Court of Appeal
19 March 2021
1,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause the taxation of legal fees because showing an appeal is arguable alone is not enough to get a stay.

What this practically means

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Executive summary

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The applicant, Christine Wangari Chege, an administrator of the estate of Rahab Wanjiru Evans (deceased), moved the Court of Appeal at Nakuru under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a High Court ruling of Odero, J dated 16th January 2019 and stay of further proceedings or taxation of about 26 bills of costs filed by the respondent advocates across various courts, pending an intended appeal. The High Court had declined to set aside restraining orders issued on 19th July 2016 securing the advocates' fees, and had held that consolidation and striking out of bills of costs was a matter for the taxing master. Before the Court of Appeal, the applicant abandoned all other prayers and pursued only stay of taxation, arguing the intended appeal raised bona fide issues, including whether she instructed the advocates personally or as administrator, and that parallel taxation before multiple taxing masters would render the appeal academic. The court found the intended appeal arguable, applying the principle that an arguable appeal need not succeed but must raise at least one bona fide issue. However, on nugatory-ness, it held the bills were filed in the courts where the services were rendered and any objections lay before the taxing masters in the first instance, so the appeal would not be rendered nugatory. Because both rule 5(2)(b) requirements must be satisfied, the application failed and was dismissed with costs to the respondent. The binding proposition for lower courts is the cumulative two-limb rule 5(2)(b) test and the taxing master's first-instance jurisdiction over bills of costs.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Yes. The issues the applicant intended to raise - whether she instructed the advocates personally or as administrator, and whether similar bills should be taxed in one station - were not frivolous.

Reasoning

The court applied the settled test that an arguable appeal is not one that must succeed or raise a multiplicity of issues; it is enough that a single bona fide issue deserving of consideration is raised. The issues framed by the applicant were held to be non-frivolous, so the arguability limb was satisfied.

p. 2
02

Whether the intended appeal would be rendered nugatory if taxation proceeded

Holding

No. The bills had not been filed arbitrarily but in the courts where the services were rendered, and any objections to the bills were matters for the taxing masters in the first instance.

Reasoning

The court noted the bills of costs were yet to be taxed and were filed in the causes where the legal services were rendered. Even if filed arbitrarily, that would be for the taxing master to deal with in the first instance. The applicant could raise all objections before the taxing masters, so the appeal would not be rendered academic or nugatory.

p. 2
03

Whether both rule 5(2)(b) requirements were met

Holding

No. Having satisfied only the arguability limb and failed the nugatory limb, the application necessarily failed.

Reasoning

The court restated that an applicant under rule 5(2)(b) must establish both arguability and nugatory-ness, and that establishing only one does not suffice. Since the applicant failed to demonstrate that the intended appeal would be rendered nugatory, the application was dismissed with costs.

p. 2

Legal principles established

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  • An applicant for stay of execution or stay of proceedings under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if it succeeds; satisfying only one limb is insufficient
  • An arguable appeal need not necessarily succeed nor raise a multiplicity of issues; it suffices that it raises even a single bona fide issue deserving of full consideration
  • It is the taxing master before whom a bill of costs is filed who has jurisdiction to tax it and to determine any objection by the parties, in the first instance

Court orders

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  1. 1.The application for stay of execution and stay of further proceedings/taxation pending the intended appeal is dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nakuru
Misc. Civil Application No. 23 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending an intended appeal)

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, "Christine Wangari Chege v John Juma Weroba & 3 others [2021] KECA 834 (KLR)", Case Analysis (2021). Civil Application No. NYR. 23 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/834/eng@2021-03-19

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