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Court of AppealAllowedMiscellaneous Civil Application dated 3rd October 2024· [2024] KECA 1833 (KLR)

Gatehi v Njuguna t/a Frank Mwangi and Company (Civil Application E094 of 2024) [2024] KECA 1833 (KLR)

Court of Appeal of Kenya
18 December 2024
Mohamed Abdulahi WarsameM. WarsameJMJ. MativoMGM. Gachoka
1,834 words in judgment
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The bottom line

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Kenya's Court of Appeal halted collection of a Kshs.16 million legal bill because the firm never proved it could repay the money if the appeal succeeded.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nakuru, on a single-judge-ruled application under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking a stay of execution of a High Court ruling by Mohochi, J delivered on 6th August 2024 in Miscellaneous Civil Application No. E026 of 2021. The underlying dispute concerns an advocate/client bill of costs: the applicant, an administrator of the estate of the late Miriam Wangare Njau in Nakuru Succession Cause No. 469 of 2009, was taxed Kshs.16,857,050/= payable to his former advocates, Ikua Mwangi & Company Advocates, which the High Court reduced to Kshs.16,387,050/= by deducting the Kshs.500,000/= instruction fees the applicant said he had paid. The applicant intended to appeal that ruling and sought a stay pending the appeal, arguing the taxed amount was not supported by any valuation report of the estate and that he would suffer irreparable loss if execution proceeded. The respondent opposed, asserting the appeal was frivolous and that he was capable of refunding the decretal sum. Applying the settled two-limb test, the court found at least one bona fide arguable ground - the absence of any valuation report on record - and held that the respondent had not evidenced, by bank statements or audited accounts, his claim to be a man of means able to refund the decree. Both limbs satisfied, the court allowed the application and stayed execution of the High Court ruling pending the appeal, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was arguable; a single bona fide arguable ground suffices, and the absence of any valuation report supporting the value of the estate raised such a ground.

Reasoning

The court applied the settled test that an arguable appeal need not succeed but must not be frivolous and must warrant full argument. The applicant raised seven grounds in his draft memorandum, including that no valuation report supported the assessed amount. The court noted the respondent claimed the sum was confirmed by a valuation report but never attached it to his replying affidavit. It declined to make definitive findings to avoid embarrassing the bench hearing the main appeal.

p. 3
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

Yes. On a money decree, the respondent bore the onus of showing he was a man of means, and his bare assertion of running a reputable law firm, unsupported by bank statements or audited accounts, failed to discharge that burden.

Reasoning

The court invoked the Kenya Hotel Properties principle that a money decree does not ordinarily render an appeal nugatory if the respondent can repay. However, the respondent gave no financial evidence - no bank statements, deposits or audited accounts - to demonstrate ability to refund Kshs.16,387,050/=. The uncorroborated claim that he runs a reputable firm did not establish that he was not a man of straw.

p. 4

Legal principles established

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  • A stay under Rule 5(2)(b) requires the applicant to demonstrate both that the appeal is arguable and that, if successful, it would be rendered nugatory absent a stay; satisfying only one limb is insufficient.
  • For a money decree, the onus is on the respondent to show that he is a person of means capable of repaying the decretal amount if the appeal succeeds.

Court orders

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  1. 1.Stay of execution of the ruling and orders issued by Mohochi, J in Miscellaneous Civil Application No. E026 of 2021 on 6th August 2024, pending the hearing and determination of the applicant's appeal against the said ruling
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159
  • Court of Appeal Rules, 2022Rule 1(2)
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 49
  • Court of Appeal Rules, 2022Rule 77

Cases cited (3)

  • Chris Munga N. Bichage v Richard Nyagaka Tongi, Independent Electoral & Boundaries Commission & Robert K. Ngeny
    [2013] KECA 141 (KLR)
  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Kenya Hotel Properties Limited v Willesden Properties Limited
    Civil Application Nai. No. 322 of 2006 (UR 178/06)
On appeal from
High Court of Kenya
Miscellaneous Civil Application No. E026 of 2021
Jurisdiction invoked
Rules 1(2), 5(2)(b) and 49 of the Court of Appeal Rules, 2022, read with Articles 25(c), 50(1) and 159 of the Constitution

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, "Gatehi v Njuguna t/a Frank Mwangi and Company (Civil Application E094 of 2024) [2024] KECA 1833 (KLR)", Case Analysis (2024). Miscellaneous Civil Application dated 3rd October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1833/eng@2024-12-18

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