Municipal Council of Kisumu v Advocates & another (Civil Application E103 of 2023) [2024] KECA 1120 (KLR)
The bottom line
#The Court of Appeal refused to stop execution against the Kisumu County Government, confirming that public bodies must pay taxed legal fees before changing advocates after judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal, if not granted an injunction, will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable under Rule 5(2)(b)
The appeal was held not to be arguable; the only near-non-frivolous ground - that advocates must execute against government via taxation and mandamus - was rejected.
The court traced three unappealed orders requiring the applicant to pay advocates' fees, including the taxation ruling of 11th November 2015 (no reference filed) and Chemitei J's order of 18th May 2016 (no appeal). The High Court had merely balanced the litigant's right to change counsel against the advocate's right to fees, conditional on paying the taxed sum. Order 9 Rule 9 embodies a protective policy rationale and is a legitimate enforcement route.
Whether the appeal would be rendered nugatory without the injunction
No nugatory effect was shown; the impugned ruling only conditioned change of counsel on paying Kshs. 174,541.88 plus interest, and execution questions remained undetermined by the High Court.
The feared Kshs. 189 million execution does not flow from the ruling appealed from; the High Court had not yet determined the substantive execution objections. The applicant failed to demonstrate the advocates' inability to refund the taxed amount or that the sum would interfere with its public functions.
Legal principles established
#- On a Rule 5(2)(b) application the applicant must show an arguable appeal and that the appeal will be rendered nugatory if the order sought is not granted; the arguability threshold is low - the appeal need only not be frivolous.
- Under Order 9 Rule 9 a party may not change advocates after judgment except with the consent of the advocate on record or leave of the court, which may be made conditional on payment of taxed fees.
- There is no rule of law making taxation followed by mandamus the only or legally superior route by which an advocate may enforce payment of fees against a government entity; Order 9 Rule 9 may be used to enforce such payment.
- On the nugatory limb, an applicant asserting that payment of public money would render its appeal nugatory must show the respondent could not refund the amounts, or that the sums would interfere with its public functions.
Court orders
#- 1.The applicant's Notice of Motion dated 8th August 2023 seeking a temporary injunction pending appeal was dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu High Court Misc. Civil Application No. 236 of 2012 (Gulf Fabricators Ltd v Municipal Council of Kisumu); ruling dated 31st May 2023
- Jurisdiction invoked
- Rules 5(2)(b), 41, 42, 43 and 49 of the Court of Appeal Rules, 2022; Articles 50 and 159 of the Constitution invoked by the applicant
Relief refused
#Temporary injunction restraining execution of the decree in Misc. Civil Application 236 of 2012 and Civil Suit No. 139 of 2004 pending appeal
Applicant failed both limbs of Rule 5(2)(b): the appeal was not shown to be arguable, nor was nugatory-ness demonstrated
Costs
The application was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the application dated 8th August, 2023 is unmeritorious. It is hereby dismissed with costs to the respondents.
The threshold is not to demonstrate that the appeal is one with a high probability of succeeding. Difierently put, an arguable appeal is one which is not frivolous.
While the applicant presents this process as the Holy Grail of execution by an advocate to recover fees against a government entity, there is no authority for supposing that that procedure is one legally superior to the route provided by Order 9 rule 9 which the 2nd respondent chose to pursue.
The court, upon consideration, balanced the rights of both parties by allowing the applicant to change advocates but only conditional upon paying the advocates fees.
Issues in the judgment
#The judgment refers to the taxation cause variously as Misc. Civil Application No. 115 of 2015 and HC Misc. Application No. E115 of 2021
The judgment states the decree was issued on 30th March 2006 while the applicant refers to a decree dated 22nd August 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Municipal Council of Kisumu v Advocates & another (Civil Application E103 of 2023) [2024] KECA 1120 (KLR)", Case Analysis (2024). Notice of Motion dated 8th August 2023 in intended appeal from Kisumu HCCC No. 139 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1120/eng@2024-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.