AZIM TAIBJEE t/a TAIBJEE AND BHALLA ADVOCATES & another v KENYA COMMERCIAL BANK LIMITED & another [2007] KECA 161 (KLR)
The bottom line
#Kenya's Court of Appeal halted collection of court-ordered costs from a law firm pending its appeal, because paying could seriously damage the firm's practice.
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 order of Warsame, J is arguable
- 2.Whether, if the application is refused, the results of the intended appeal, were it to succeed, would be rendered nugatory
- 3.Whether execution of costs ordered against the applicants should be stayed pending the intended appeal
Key legal issues
#Test for stay under rule 5(2)(b) of the Court of Appeal Rules
The court applied the settled twin principles of arguability and nugatory effect, and found both satisfied on the facts.
The court held that the issue whether persons not party to the originating summons, and who had ceased to act for the second respondent, could be ordered to pay its costs was arguable. It further found that a personal costs order against a firm of advocates would affect their practice, and since the parties to the suit were each to bear their own costs, execution of the taxed costs would render the appeal nugatory.
Effect of a personal costs order on advocates who were not parties to the suit
A personal costs order against a firm of advocates would affect their practice, supporting the nugatory-ness limb of the rule 5(2)(b) test.
The applicants, trading as a firm of advocates, had costs ordered against them in person despite not being parties to the originating summons. The order did not specify who was to have the costs since the parties to the suit were to bear their own costs. The court held that such an order would certainly affect their practice, and stayed execution once costs were taxed pending the intended appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate first that the appeal or intended appeal is arguable, and secondly that if the application is refused, the results of the intended appeal, were it to succeed, would be rendered nugatory.
Court orders
#- 1.Stay of execution of costs once taxed, pending the filing, hearing and determination of the intended appeal
- 2.Costs of the application to 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 as overtaken by events since the security documents had been released
Stay of taxation of the costs
The court declined to interfere with the taxation process
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.
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 see the case of Reliance Bank Limited vs. Norlake Investments Limited (2002) I EA.
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.
Issues in the judgment
#The order of the High Court under appeal is internally inconsistent as to the deadline for release of documents, and the Court of Appeal expressly declined to resolve the conflict.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AZIM TAIBJEE t/a TAIBJEE AND BHALLA ADVOCATES & another v KENYA COMMERCIAL BANK LIMITED & another [2007] KECA 161 (KLR)", Case Analysis (2007). Civil Appli 234 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/161/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.