Shah v Ngonze & Ngonze Advocates (Civil Application E127 of 2024) [2026] KECA 747 (KLR)
The bottom line
#Kenya's Court of Appeal froze a Kshs. 5.5 million costs award against Atul Shah, ruling his appeal over an unsigned-off settlement consent is worth hearing.
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 supporting affidavit sworn by Samuel Aduda, the Applicant's counsel, was competent notwithstanding the absence of written authority
- 2.Whether the Applicant has satisfied the twin requirements under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of the High Court ruling pending the intended appeal
Key legal issues
#Competence of an affidavit sworn by counsel without written authority
The preliminary objection was dismissed because the matters deponed to fell within the advocate's personal knowledge.
The court examined the substance of the affidavit and found it related to the settlement agreement and the taxation of an advocate-client bill of costs. Such matters being within the deponent advocate's knowledge, he was better placed to swear the affidavit. The objection premised on Order 1 rule 12 of the Civil Procedure Rules and the Research International authority therefore failed, without the court expressly distinguishing that authority.
Whether the intended appeal is arguable
The appeal was held arguable on the questions of the legal effect of a signed but unadopted consent and section 45 of the Advocates Act, without expressing any view on the merits.
The court applied the settled principle that an arguable appeal need not be one that must succeed, only one deserving of consideration. The intended appeal raised the learned Judge's failure to give effect to a consent marking the matter settled, the effect of a written remuneration agreement under section 45 of the Advocates Act, and the disregarding of Article 159(2)(d) of the Constitution. These were held to be bona fide, non-frivolous questions.
Whether the appeal, if successful, would be rendered nugatory absent a stay
Execution of the taxed costs before the appeal would undermine the substratum of the appeal and render it academic; the nugatory limb was satisfied.
The court reasoned that if execution and enforcement of the certificate of costs of Kshs. 5,500,000 proceeded before the appeal was heard, and the Respondent received payment, the position of the parties would be fundamentally altered in a manner not easily reversible. The gravamen of the appeal being the payment of legal fees notwithstanding an alleged binding settlement, execution would substantially undermine and risk rendering the appeal academic.
Legal principles established
#- An advocate's supporting affidavit on matters within his own knowledge, such as a settlement agreement and taxation of an advocate-client bill, is competent even absent formal written authority.
- Rule 5(2)(b) jurisdiction is original, independent and discretionary, but must be exercised judiciously, guided by the twin principles of an arguable appeal and nugatory outcome.
- A signed but formally unadopted consent, and its binding legal effect, is a bona fide arguable question capable of supporting a stay of execution under rule 5(2)(b).
Court orders
#- 1.Dismissal of the Respondent's preliminary objection on the competence of the supporting affidavit
- 2.Stay of execution of the ruling of the High Court delivered on 29th October 2024 and all consequential orders arising therefrom, pending the hearing and determination of the intended appeal
- 3.Costs of the application in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Reference arising from Mombasa High Court Misc. Civil Application No. 227 of 2021
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 43 of the Court of Appeal Rules
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.
In sum, the Applicant having met the two requirements being the basis on which the orders of stay of execution under Rule 5 (2) (b) can be granted, the Notice of Motion dated 12th November 2024 is merited and is allowed. Costs in the intended appeal. It is so ordered.
This Court's jurisdiction under Rule 5(2)(b) is original, independent, and discretionary. However, the court must exercise this discretion judiciously and rationally, and not out of impulsiveness or sympathy.
an applicant must demonstrate that the appeal or intended appeal is arguable; and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
We therefore decline to allow the preliminary objection which we hereby dismiss.
Issues in the judgment
#Minor typographical errors and formatting defects in the judgment text (e.g. 'efiict' for 'effect', 'afidavit' for 'affidavit', Guardian Bank quotation block appears truncated and merges into an unnumbered quote)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah v Ngonze & Ngonze Advocates (Civil Application E127 of 2024) [2026] KECA 747 (KLR)", Case Analysis (2026). Notice of Motion dated 12th November 2024 (arising from Mombasa High Court Misc. Civil Application No. 227 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/747/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.