Benard Kibet Rono (Suing as the legal representative of the Estate of the late Eunice Chepngetich Ngasura (Deceased) v Tapnyobii Chebii Ngasura & another [2020] KEELC 3795 (KLR)
The bottom line
#The Environment and Land Court in Kericho dismissed debtors' attempt to overturn execution orders, confirming that taxed costs can be enforced without a separate decree and appeal and review cannot run together.
What this practically means
#Executive summary
#Key legal issues
#Whether review was merited on the ground of non-service and lack of a decree for costs
Review was refused: the applicants were in fact served with the notice to show cause and no separate decree was required for party and party costs
The record showed service of the notice to show cause on the applicants on 20th May, 2019, with acknowledgment. On costs, the court held that Section 51(2) of the Advocates Act applies only to advocate/client bills, and Order 21 rule 9 permits taxed party and party costs to be stated in a certificate; a further decree would be superfluous. The premises of the review application therefore failed.
Whether the mistake of the former advocate should be visited on the applicants
No; the record showed the advocate was actively involved and the applicants themselves went to sleep after judgment
The court reviewed the record and found the former counsel participated in proceedings before and after judgment, including attending the notice to show cause. The jurisprudence that an advocate's mistakes are not always excusable shows the principle is not iron-clad; justice determines the outcome. The applicants only stirred on the reality of execution.
Whether pursuing an appeal and a review application simultaneously was proper
The two remedies are mutually exclusive; the applicants were playing ping-pong with the judicial process
The applicants had already gone to the Court of Appeal seeking leave to appeal out of time while filing a review application in this court. The court held that opting for appeal forfeits the right of review and vice versa. Simultaneous pursuit in two fora was condemned as unacceptable.
Whether the replying affidavit should be expunged for conflict of interest
No; the former counsel had already been replaced by the present counsel when he commissioned the affidavit
The memorandum of appeal dated 29th May, 2018 showed the current counsel had taken over from the former counsel. The replying affidavit itself indicated it was to be served on the present counsel. The former counsel therefore acted outside the matter when he commissioned the affidavit, and the allegation of conflict was baseless.
Legal principles established
#- Section 51(2) of the Advocates Act concerns advocate/client costs and has no application to party and party costs, which do not require conversion of a certificate of taxation into a separate decree before execution
- The right of appeal and the right of review are mutually exclusive; a litigant cannot pursue both simultaneously
- The principle that an advocate's mistake should not be visited on the client is not iron-clad; it depends on the imperatives of justice
- Costs assessed after a decree is drawn are shown in a certificate of costs signed by the taxing officer, while costs assessed before the decree is drawn are stated in the decree itself
Court orders
#- 1.The application dated 19th August, 2019 is dismissed with costs
- Jurisdiction invoked
- Sections 3A and 63 of the Civil Procedure Act (cap 21) and Order 45 of the Civil Procedure Rules, 2010 (review/set aside of execution orders in a concluded suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Kibet Rono (Suing as the legal representative of the Estate of the late Eunice Chepngetich Ngasura (Deceased) v Tapnyobii Chebii Ngasura & another [2020] KEELC 3795 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 19th August, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3795/eng@2020-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.