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Court of AppealDismissedCivil Appeal No. 34 of 2017

Centre for Peace and Democracy v Non Governmental Organizations (NGOS) Co-ordination Board [2019] KECA 724 (KLR)

Court of Appeal of Kenya
21 May 2019
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that you cannot challenge an execution order like salary attachment when your real target is the underlying costs order—attack the right decision.

What this practically means

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Executive summary

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The Centre for Peace and Democracy appealed against a ruling of the High Court at Kisumu (Majanja, J) which dismissed its Notice of Motion seeking a stay of execution and review or setting aside of a Deputy Registrar's order of 22nd November, 2011 attaching one-third of the appellant's salary to settle costs of Kshs. 209,527 awarded against it. The appellant argued that the respondent's advocates, Otieno, Yogo, Ojuro and Company Advocates, were not properly on record because they came on record over a year before the tendering process that placed them on the respondent's panel of lawyers, and that the costs awarded were therefore illegal. The Court of Appeal framed a single issue: whether the learned Judge erred in dismissing the application. The Court agreed with the High Court that the application was misconceived: the order sought to be reviewed was the attachment order, not the order imposing costs, and the Deputy Registrar was merely enforcing a costs order made by Nambuye, J, by which she was bound. Order 49 rule 5 of the Civil Procedure Rules empowers the Registrar to make formal execution orders. The Court further held that the matter concerned party and party costs which the respondent, not complaining, could not be denied because of any irregularity in its counsel's appointment, and the respondent's legal officer's uncontroverted affidavit affirmed that instructions had been issued. The appeal was dismissed with costs to the respondent on 21st May, 2019.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in dismissing the appellant's application for review, stay of execution and setting aside of the Deputy Registrar's order attaching one-third of the appellant's salary

Key legal issues

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01

Whether the Deputy Registrar erred in issuing the notice to show cause and the order attaching one-third of the appellant's salary

Holding

The Deputy Registrar did not err; she was merely performing her duties by enforcing a costs order already issued by the court (Nambuye, J), and was bound by that ruling regardless of whether the respondent's law firm was properly on record.

Reasoning

The court reasoned that the application attacked the wrong order: the order attaching salary was merely a mode of execution of the costs order, which would remain untouched even if the review succeeded. Order 49 rule 5 of the Civil Procedure Rules empowers the Registrar to make formal orders for attachment. Any challenge to the legality of the costs award should have been directed at the ruling of Nambuye, J, which awarded the costs, not at the Deputy Registrar's execution order.

p. 2
02

Whether the costs awarded could be denied because the respondent's law firm allegedly lacked instructions or was not properly on record

Holding

No. The matter concerned party and party costs; the respondent did not complain about the firm's appointment, and the respondent's legal officer deposed that instructions were issued verbally, which deposition was uncontroverted.

Reasoning

The court held that in party and party costs it does not matter how the law firm came on record for the respondent, which is not complaining. The costs were awarded to the respondent and could not be denied because of an irregularity in counsel's appointment. Further, the affidavit of the respondent's legal officer affirming that instructions were issued stood uncontroverted, establishing the contractual relationship between the respondent and the firm.

p. 2

Legal principles established

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  • A Deputy Registrar serves at the direction of the court she serves under and is bound by its decisions; she may issue formal orders for attachment and execution of a decree under Order 49 rule 5 of the Civil Procedure Rules, and objections to the underlying costs order must be directed at the order imposing costs, not at the execution order.
  • Party and party costs awarded to a party cannot be denied to that party because of an irregularity, if any, in the appointment of its counsel, where the party does not complain.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
Miscellaneous No. 7 of 2011
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164) against a ruling of the High Court in Miscellaneous No. 7 of 2011

Relief refused

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Stay of execution of the Deputy Registrar's order of 22nd November, 2011 and review/vary/set aside of that order

The order sought to be reviewed was the attachment order, not the order imposing costs; the Deputy Registrar was merely enforcing the costs order made by Nambuye, J, and her hands were tied by that ruling; the issue of the law firm's instructions was uncontroverted

p. 2

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find that the Deputy Registrar did not err in issuing the notice to show cause and the resulting order. She was merely performing her duties, therefore regardless of whether or not the law firm was properly on record, her hands were tied by the ruling delivered by Nambuye, J.
p. 2Role of Deputy Registrar in execution
The costs were awarded to the respondent and therefore the same cannot be denied to them because of an irregularity, if any, in the appointment of its counsel.
p. 2Party and party costs and legality of counsel's appointment
The upshot is that this appeal is devoid of merit. It is accordingly dismissed with costs to the respondent.
p. 2Disposition

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, "Centre for Peace and Democracy v Non Governmental Organizations (NGOS) Co-ordination Board [2019] KECA 724 (KLR)", Case Analysis (2019). Civil Appeal No. 34 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/724/eng@2019-05-21

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