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Court of AppealAllowedCivil Application No. E722 of 2022

Nkoumondo v Mwaniki Gachoka & Co Advocates (Civil Application E475 of 2022) [2024] KECA 531 (KLR)

Court of Appeal
9 May 2024
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped enforcement of a Kshs. 23 million legal fees judgment, protecting the property attached until the appeal is decided.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of a High Court ruling delivered by Sergon, J. on 30 December 2021, in which judgment was entered in favour of the respondent firm of advocates for Kshs. 23,046,039/- pursuant to a Certificate of Taxation. The applicant, who had filed Appeal No. E722 of 2022 against that judgment, opposed the respondent's attempt to attach property L.R. Nairobi/Block 94/228, which the firm held under lien for the contested fees. The respondent opposed, arguing the application was an afterthought, that the applicant had failed to comply with a conditional stay granted by the trial court requiring deposit of the decretal sum, and that the applicant was a foreigner with no known assets, meaning any sums paid could be refunded if the appeal succeeded. Applying the well-settled twin principles for rule 5(2)(b) applications - arguability and nugatory value - the court found, without delving into the merits, that the applicant had raised arguable points. On the nugatory limb, although this was a money decree which ordinarily cannot be rendered nugatory, the court noted the decretal sum was colossal and the property at stake was likely to be sold, its value being unclear. Balancing the conflicting claims of both sides, the court concluded the property ought to be preserved. It stayed the High Court orders of 30 December 2021 pending hearing and determination of the appeal, with costs to abide the outcome. The decision below was not disturbed on its merits; only its execution was suspended.

Questions the Court framed

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

  1. 1.Whether the applicant has demonstrated that he has an arguable appeal
  2. 2.Whether the appeal will be rendered nugatory if the execution of the decree is not stayed

Key legal issues

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01

Arguability of the intended appeal

Holding

The court declined to delve into the merits but found the applicant had raised arguable points that are not frivolous.

Reasoning

The court was careful not to delve into the merits of the appeal, which is the preserve of the bench that will hear and determine the appeal. On a glance at the memorandum of appeal, which raised grounds including alleged errors by the trial court in sustaining the Deputy Registrar's taxation despite two certificates of costs, the court formed the view that the points raised were arguable and needed ventilation at the hearing of the main appeal.

p. 3
02

Nugatory value of a money decree and preservation of the subject matter

Holding

Even though the appeal arises from a money decree, the decretal sum was colossal and the property at stake was likely to be sold, so the property ought to be preserved pending the appeal.

Reasoning

In assessing nugatory value on a money decree, the court weighs the conflicting claims of both parties on their own merits. Here the decretal sum of over Kshs. 23 million was colossal, the respondent had moved to attach and sell property L.R. Nairobi/Block 94/228 held under lien, and its value was unclear. Balancing the claims of both sides, the court concluded that preservation of the property pending appeal was the just course.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
  • For a money decree, an appeal ordinarily cannot be rendered nugatory if payment is effected, since the respondent would be in a position to repay; but the court must weigh the conflicting claims of both sides.

Court orders

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  1. 1.Stay of the orders of the High Court dated 30th December 2021 pending the hearing and determination of the appeal
  2. 2.Costs to abide the outcome of the appeal

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
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

Consequently, we stay the orders of the High Court dated 30th December 2021, pending the hearing and determination of the appeal. Costs will abide the outcome of the appeal.
p. 4Final orders - stay of execution granted
To succeed an applicant must satisfy the twin principles, namely: i. An applicant must demonstrate that they have an arguable appeal; and ii. That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, or order of proceedings is not stayed.
p. 3Twin principles for stay under Rule 5(2)(b)
In determining whether or not an appeal will be rendered nugatory, the court has to consider the confiicting claims of both parties and each case has to be determined on its own merits, considering that the crux of the matter is a money decree.
p. 3Nugatory test for money decrees
our considered view, balancing the claim by both sides, is that the property ought to be preserved pending hearing and determination of the appeal.
p. 4Preservation of the subject matter of the appeal

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, "Nkoumondo v Mwaniki Gachoka & Co Advocates (Civil Application E475 of 2022) [2024] KECA 531 (KLR)", Case Analysis (2024). Civil Application No. E722 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/531/eng@2024-05-09

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