Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMiscellaneous Civil Application No. 14 of 2021· [2022] KEELC 2145 (KLR)

Sifuna & Sifuna Advocates v Patrick Simiyu Khaemba [2022] KEELC 2145 (KLR)

Environment and Land Court
17 January 2022
5,472 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed a former governor's partial stay of legal fees enforcement, confirming that finished lawsuits stay alive for costs disputes.

What this practically means

#

Executive summary

#
In a Notice of Motion dated 23/09/2021 brought under the inherent jurisdiction of the Environment and Land Court at Kitale, Hon. Patrick Simiyu Khaemba (former Governor and former client of Prof. N. Sifuna) sought a stay of the proceedings, ruling, intervention and execution in Miscellaneous Civil Application No. 14 of 2021 - the taxation of the respondent's advocate-client bill of costs - pending determination of Kitale ELC No. 166 of 2013, alleging that the certificate of taxation in the parent suit was procured by fraud and collusion. The respondent opposed, arguing the application was brought to delay taxation, cited no legal provision, and that the proper challenge to a taxation was by reference, not review. Framing two issues (stay and costs), the Court found an advocate-client relationship beyond peradventure: the applicant's sworn denials of instructions contradicted his own signed witness statement and annextures and bordered on perjury; instructions were given in his private capacity, not on behalf of the County Government of Trans Nzoia. On functus officio, applying Telkom Kenya v Ochanda, Raila Odinga and Bellevue Development, the Court held that the parent court was functus officio on the merits but retained jurisdiction over consequential costs issues, which kept the suit alive. Costs followed the event by operation of the Proviso to Section 27 of the Civil Procedure Act when the suit against the 2nd Defendant was dismissed, with prayer 2 of the application of 16/10/2017 granted. The Court allowed the application in part: stay of proceedings and execution was granted pending determination of the Application dated 30/08/2021 in the parent suit, with the files to be mentioned together, and costs of the application were put in the cause. Judgment delivered on 17 January 2022.

Key legal issues

#
01

Whether an advocate-client relationship existed between the parties in Kitale ELC No. 166 of 2013

Holding

It existed; the applicant instructed the respondent in his individual capacity and could not approbate and reprobate by denying instructions on oath

Reasoning

The Court found the applicant's contradictory sworn statements bordered on perjury. His signed witness statement of 2/12/2013 and the annextures (NS 6(a)-(e)) showed he instructed the respondent to file Kitale ELC No. 166 of 2013 in his private capacity, not for the County Government. The relationship ended on 30/08/2021 upon filing of a Notice of Change of Advocates.

p. 3
02

Whether the Court in Kitale ELC No. 166 of 2013 was functus officio such that no stay pending its determination could issue

Holding

The Court was functus officio on the merits only; outstanding costs issues kept the suit alive

Reasoning

Relying on Telkom Kenya Limited v John Ochanda, Raila Odinga and Bellevue Development, the Court held that the functus officio doctrine bars merit-based re-engagement but does not foreclose incidental or consequential matters such as costs and execution. Since whether costs were payable to the 2nd Defendant remained undetermined via the Application dated 30/08/2021, the suit was still live to that extent.

p. 4
03

Whether costs were payable to the 2nd Defendant following dismissal of the suit against her

Holding

Costs followed the event by operation of the Proviso to Section 27 of the Civil Procedure Act even absent an express order, and prayer 2 of the Application dated 16/10/2017 was granted

Reasoning

The order of 18/10/2018 granted prayers 1 and 2 of the application dated 16/10/2017, prayer 2 providing for costs to the 2nd defendant. Additionally, since the suit against the 2nd Defendant was dismissed and no order was made that costs do not follow the event, the general rule applied, defeating the claim of fraud or collusion in the taxation.

p. 5
04

Whether a stay of proceedings and execution in the taxation miscellaneous application should issue

Holding

Yes, granted pending determination of the Application dated 30/08/2021 in the parent file

Reasoning

Having found a nexus between the two matters and that live post-judgment issues remained in Kitale ELC No. 166 of 2013, the Court found the application merited. For case management, the miscellaneous file was to be mentioned alongside the parent suit to track determination of the outstanding issues.

p. 5

Legal principles established

#
  • A court becomes functus officio on the merits of a concluded suit, but retains jurisdiction over consequential and post-judgment issues such as costs and execution until those are perfected
  • Under the Proviso to Section 27 of the Civil Procedure Act, costs follow the event unless the court for good reason otherwise orders, and such an order need not be express

Court orders

#
  1. 1.Prayer 2 granted to the extent that a stay of proceedings and execution in Miscellaneous Civil Application No. 14 of 2021 is granted pending the determination of the Application dated 30/08/2021 filed in Kitale ELC No. 166 of 2013
  2. 2.The Miscellaneous File shall be mentioned alongside Kitale ELC No. 166 of 2013 to confirm whether the outstanding issues therein are determined
  3. 3.Costs of the Application to be in the cause
Jurisdiction invoked
Inherent jurisdiction of the Court (no specific statutory provision invoked)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sifuna & Sifuna Advocates v Patrick Simiyu Khaemba [2022] KEELC 2145 (KLR)", Case Analysis (2022). Miscellaneous Civil Application No. 14 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2145/eng@2022-01-17

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