AZIM TAIBJEE & ANOTHER v KENYA COMMERCIAL BANK LIMITED & ANOTHER [2007] KECA 140 (KLR)
The bottom line
#Kenya's Court of Appeal blocked collection of costs awarded personally against a law firm until its appeal is heard, but allowed the cost assessment to continue.
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 intended appeal against the ruling and orders of Warsame, J dated 4th September 2007 is arguable.
- 2.Whether, if the application is refused, the results of the intended appeal, were it to succeed, would be rendered nugatory.
- 3.What relief, if any, should issue given that the applicants abandoned the general stay of proceedings and confined the application to the taxation and execution of the costs awarded against them personally.
Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b) of the Court of Appeal Rules.
The intended appeal is arguable. Whether advocates who were arguably no longer on record for the second respondent, and who were not parties to the originating summons, could be ordered to pay the costs of the entire originating summons compromised by others is an arguable point; so is the refusal of their adjournment.
The originating summons was served on Charterhouse Bank, not on the applicants, and the notice of motion of 31st August 2007 which produced the impugned orders was drawn to be served on Ochieng', Onyango, Kibet & Ohaga, the second respondent's new advocates, even if it may also have been served on the applicants. Whether advocates, by then no longer acting and not parties to the originating summons, could be ordered personally to pay the costs of an entire suit compromised by others was therefore arguable. So too was the refusal of their adjournment, since the undertaking covering their costs was given ten days after the order complained of.
Whether refusal of the stay would render the success of the intended appeal nugatory.
Yes, in respect of execution of the costs. Costs were ordered against the applicants in person and such an order would certainly affect their practice as a firm of advocates; moreover, the order did not specify who was to have the costs, since the parties to the originating summons were each to bear their own costs.
Costs of the originating summons and the application were ordered against the applicants personally, in personam. As practising advocates, such an order would directly affect their practice, and the order did not state who was to receive the costs, since the parties to the originating summons were themselves to bear their own costs. The costs had not been taxed, and the Court declined to interfere with taxation; but if execution were to proceed before the intended appeal was determined, success in the appeal could be rendered nugatory. The nugatory limb was therefore satisfied in respect of execution only.
What relief should issue where the general stay of proceedings was abandoned and only the costs order remained live.
Taxation of the costs was not stayed, but execution of the costs once taxed was stayed pending the filing, hearing and determination of the intended appeal, and the costs of the application were made costs in the intended appeal.
Having found both limbs of rule 5(2)(b) satisfied only in respect of the costs order, the Court tailored relief to the subsisting dispute. The general stay of proceedings had been abandoned because the security documents had been released. Interference with taxation was refused, as taxation is a distinct process and the appeal targeted the costs order itself. What remained capable of rendering the appeal nugatory was execution, so execution of the costs once taxed was stayed pending the intended appeal, with the costs of the application to abide the appeal.
Legal principles established
#- On an application under rule 5(2)(b) of the Court of Appeal Rules for a stay pending an intended appeal, the applicant must first satisfy the court that the appeal or intended appeal is arguable, and must secondly demonstrate that if the application is refused, the results of the intended appeal, were it to succeed, would be rendered nugatory.
- Where costs have been ordered personally against a firm of advocates and the costs have been taxed, execution of those costs should not proceed until the intended appeal against the order is heard and determined, where refusal of the stay would render a successful appeal nugatory.
Court orders
#- 1.The execution for costs once taxed, is stayed pending the filing, hearing and determination of the intended appeal.
- 2.Costs of this application shall be costs 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 Nairobi
- H.C.C.C No. 626 of 2006 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of all further proceedings in H.C.C.C No. 626 of 2006
Abandoned by the applicants themselves as overtaken by events, the subject security documents having already been released before the hearing of the application.
Stay of the taxation of the costs awarded against the applicants
The Court declined to interfere with the taxation process and confined the stay to execution of the costs once they had been taxed.
Costs
Costs of this application shall be costs in the intended appeal.
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.
The execution for costs once taxed, is stayed pending the filing, hearing and determination of the intended appeal. Costs of this application shall be costs in the intended appeal.
First, the applicant must satisfy the court that the appeal or the intended appeal (as in this matter before us) is arguable. Secondly, it must be demonstrated that if the application is refused, the results of the intended appeal, were it to succeed, would be rendered nugatory
The applicants are trading as a firm of advocates. Costs were ordered against them in person. That will, in our mind, certainly affect their practice while at the same time it is not specifically stated in the order as to who is to have the costs as the parties to the originating summons were each to bear their own costs.
Under those circumstances, and without deciding on the matter at this stage, we are of the view that the issue as to whether the applicants cited in that application and who were at that time not the advocates for the second respondent should have been ordered to pay costs of the entire originating summons compromised by parties other than the applicants is an arguable point.
Issues in the judgment
#The extracted High Court order reproduced in the judgment contains an internally inconsistent timeframe for release of the documents (four days versus seven days), which the Court expressly declined to resolve.
The Court decided the application without the benefit of the High Court proceedings, which were not included in the record before it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AZIM TAIBJEE & ANOTHER v KENYA COMMERCIAL BANK LIMITED & ANOTHER [2007] KECA 140 (KLR)", Case Analysis (2007). Civil Appli 234 of 2007 (UR 145/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/140/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.