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ELCPartially AllowedELC No. 120 of 2017· [2022] KEELC 1619 (KLR)

Rehema Kazungu Baya v Rehema Kazungu Baya [2022] KEELC 1619 (KLR)

Environment and Land Court
18 January 2022
2,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court allowed a woman to pause paying disputed legal costs, but only if she deposits the money in escrow and completes a disciplinary case within 180 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Hon. L.L. Naikuni, J) on a Notice of Motion dated 29th September 2021 by the Plaintiff, Rehema Kazungu Baya, seeking a stay and/or setting aside of execution of the Taxation Master's ruling of 20th August 2021, by which she was ordered to pay the Defendant, Tulip Development Limited, taxed costs of Kshs. 561,750/-. The applicant contended that her former advocates, the firm of Murangata/Mwamgata Korir & Company Advocates, withdrew an earlier suit (ELC No. 82 of 2017) and instituted the present suit without her instructions, and that a complaint was pending before the Advocates Disciplinary Committee. The defendant opposed, arguing the suit had been dismissed, no appeal or review was preferred, the court was thus functus officio, the defendant was not a party to the ADC proceedings, and the former advocates were not joined. The court framed three issues and held that the Order 42 Rule 6(1) threshold for stay was not met since no appeal, review or reference existed, and that there was a breach of natural justice in failing to join the former advocate. Nonetheless, invoking its inherent powers under Section 3(1) of the ELC Act, Sections 1, 1A and 3 of the Civil Procedure Act and Article 159(1) of the Constitution, the court allowed the application conditionally: the applicant to deposit Kshs. 561,750/ in a joint escrow account of both advocates' firms within 30 days, to press the ADC proceedings to conclusion within 180 days, failing which the application would stand dismissed with costs; costs were in the cause and the matter was set for mention on 18th March 2022.

Key legal issues

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01

Whether the application met the Order 42 Rule 6(1) threshold for stay of execution

Holding

It did not, as no appeal, review or reference had been preferred against the taxation ruling, and the court could not identify what decree or order there was to stay

Reasoning

Order 42 Rule 6(1) presupposes a pending appeal or intended appeal. Here the suit had been dismissed on 22nd February 2021 and no appeal, review or reference challenging the taxation was filed. The court therefore found itself uncertain as to what it was being asked to stay. The requirements of sufficient cause, substantive loss, security and promptness were also not independently satisfied on the material presented.

p. 4
02

Whether the parties were entitled to the prayers sought

Holding

Strictly no - there was a breach of natural justice in failing to join the former advocate, the defendant was improperly dragged into the ADC proceedings, and entitlement was difficult to deduce; however, in exercise of inherent powers the court granted a conditional reprieve requiring deposit of the decretal sum in a joint escrow account

Reasoning

The court agreed with the respondent that the former advocate should have been joined (breach of natural justice) and that the defendant was not a party to the ADC proceedings. But invoking the overriding objective under Section 3(1) of the ELC Act, Sections 1, 1A and 3 of the Civil Procedure Act and Article 159(1) of the Constitution, the court deemed it fair and just to direct the decretal amount be deposited in a joint escrow account pending the ADC outcome.

p. 4
03

Who bears the costs of the application

Holding

Costs were ordered to be in the cause

Reasoning

Rather than awarding costs to either party outright, the court made costs contingent, to be determined in the cause, consistent with the conditional and equitable nature of the reprieve granted pending the Advocates Disciplinary Committee proceedings.

p. 4

Legal principles established

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  • For a stay of execution under Order 42 Rule 6(1), the applicant ought to have preferred an appeal, and must show sufficient cause, likelihood of substantive loss, readiness to furnish security and absence of inordinate delay
  • A party adversely mentioned in proceedings who is not joined is a breach of the principles of natural justice

Court orders

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  1. 1.The Notice of Motion application by the Plaintiff/Applicant dated 29th September, 2021 is allowed
  2. 2.The Plaintiff/Applicant to deposit the decretal sum of Kshs. 561,750.00 in the joint escrow bank account of Messrs. Kedeki & Co. Advocates and Messrs. Mwakireti & Asige Advocates within 30 days from the date of the ruling, to be held there pending the hearing and final determination of the Advocates Disciplinary Committee proceedings
  3. 3.The Plaintiff/Applicant to ensure the proceedings before the Advocates Disciplinary Committee commence in earnest and be finalized within 180 days from the date of the ruling
  4. 4.In default of adherence to the above conditions, the Notice of Motion dated 29th September, 2021 shall stand dismissed with costs and execution to issue
  5. 5.The matter to be mentioned on 18th March, 2022 to ascertain progress and give further directions
  6. 6.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1, 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 42 Rule 6(1), Order 46 Rule 2, Order 51 Rule 1, Order 9 Rule 9
  • Environment and Land Court ActSection 3(1)
  • Constitution of KenyaArticle 159(1)

Cases cited (1)

  • MRAO Limited -Versus- First American Bank of Kenya Ltd. And 2 Others
    (2003) eKLR 125
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 46 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules, with the inherent powers under Section 3(1) of the Environment and Land Court Act and Article 159(1) 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, "Rehema Kazungu Baya v Rehema Kazungu Baya [2022] KEELC 1619 (KLR)", Case Analysis (2022). ELC No. 120 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1619/eng@2022-01-18

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