Penelope Combos & Anthony Combos v Kagwimi Kang’ethe & Co Advocates [2015] KECA 147 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the Combos' bid to halt execution of a taxed advocates' fee decree, confirming that stay applicants must prove both arguability and nugatory prejudice.
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 is arguable
- 2.Whether, unless a stay of execution is granted, the appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because the High Court's own finding suggested the accounts between advocates and clients may not have been settled, casting doubt on entry of judgment under section 51(2) of the Advocates Act.
The Court noted that Gikonyo J. had himself observed that the clients might have to resort to a general right to demand a final account, a process apart from the s.51(2) proceedings. That finding would suggest the accounts were not satisfactorily settled, giving rise to a serious question whether judgment could properly be entered under section 51(2). An arguable appeal need not succeed eventually.
Nugatory aspect
The appeal would not be rendered nugatory absent a stay because the subject was a money decree, the decretal sum had already been deposited in court, and no allegation of the advocates' impecuniosity was made.
The clients' only ground was that their matrimonial home would be sold, but the matter before the Court was a money decree whose amount they had deposited in court pursuant to an order of the court below. Gikonyo J. had expressly found the advocates able to refund the decretal sum if the appeal succeeded, so success could not be pyrrhic.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability of the appeal and the nugatory aspect; satisfying only one is insufficient.
- An arguable appeal need not be one that will ultimately succeed; a single arguable ground suffices at this stage.
Court orders
#- 1.Application for stay of execution and stay of proceedings pending appeal dismissed
- 2.Costs of the application awarded to the advocates/respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- NRB Misc. Case No. 394 of 2008
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of Gikonyo J. dated 19 June 2014
Only arguability was demonstrated; the nugatory aspect was not, as the decretal sum had been deposited in court and the advocates were found able to refund it
Stay of all proceedings in HCC Misc. Cause No. 394 of 2008
Same failure to satisfy the twin conditions for relief under rule 5(2)(b)
Costs
Costs of the application awarded to the advocates (respondents)
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.
An applicant must satisfy the Court that the intended appeal or appeal if one has been filed is arguable and that unless the order sought is granted, the appeal, if successful, would be rendered nugatory.
It must be remembered that an arguable appeal is not one which must eventually succeed.
We therefore have no alternative but to dismiss the clients’ application which we hereby do with costs to the advocates.
Issues in the judgment
#The decretal amount appears inconsistently as Kshs.947,485.42 in the certificate of taxation and Kshs.947,485.45 in the Notice of Motion.
The ruling inconsistently describes the annexed draft grounds as those of 'the advocates' when they are the clients'/applicants' draft grounds of appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Penelope Combos & Anthony Combos v Kagwimi Kang’ethe & Co Advocates [2015] KECA 147 (KLR)", Case Analysis (2015). Civil Application No. NAI 205 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/147/eng@2015-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.