Atul Shah v Ngonze & Ngonze Advocates
The bottom line
#Kenya's Court of Appeal froze a Kshs. 5.5 million costs award against Atul Shah, ruling his appeal over an unsigned-off settlement consent is worth hearing.
What this practically means
#Executive summary
#Key legal issues
#Competence of an affidavit sworn by counsel without written authority
The preliminary objection was dismissed because the matters deponed to fell within the advocate's personal knowledge.
The court examined the substance of the affidavit and found it related to the settlement agreement and the taxation of an advocate-client bill of costs. Such matters being within the deponent advocate's knowledge, he was better placed to swear the affidavit. The objection premised on Order 1 rule 12 of the Civil Procedure Rules and the Research International authority therefore failed, without the court expressly distinguishing that authority.
Whether the intended appeal is arguable
The appeal was held arguable on the questions of the legal effect of a signed but unadopted consent and section 45 of the Advocates Act, without expressing any view on the merits.
The court applied the settled principle that an arguable appeal need not be one that must succeed, only one deserving of consideration. The intended appeal raised the learned Judge's failure to give effect to a consent marking the matter settled, the effect of a written remuneration agreement under section 45 of the Advocates Act, and the disregarding of Article 159(2)(d) of the Constitution. These were held to be bona fide, non-frivolous questions.
Whether the appeal, if successful, would be rendered nugatory absent a stay
Execution of the taxed costs before the appeal would undermine the substratum of the appeal and render it academic; the nugatory limb was satisfied.
The court reasoned that if execution and enforcement of the certificate of costs of Kshs. 5,500,000 proceeded before the appeal was heard, and the Respondent received payment, the position of the parties would be fundamentally altered in a manner not easily reversible. The gravamen of the appeal being the payment of legal fees notwithstanding an alleged binding settlement, execution would substantially undermine and risk rendering the appeal academic.
Legal principles established
#- An advocate's supporting affidavit on matters within his own knowledge, such as a settlement agreement and taxation of an advocate-client bill, is competent even absent formal written authority.
- Rule 5(2)(b) jurisdiction is original, independent and discretionary, but must be exercised judiciously, guided by the twin principles of an arguable appeal and nugatory outcome.
- A signed but formally unadopted consent, and its binding legal effect, is a bona fide arguable question capable of supporting a stay of execution under rule 5(2)(b).
Court orders
#- 1.Dismissal of the Respondent's preliminary objection on the competence of the supporting affidavit
- 2.Stay of execution of the ruling of the High Court delivered on 29th October 2024 and all consequential orders arising therefrom, pending the hearing and determination of the intended appeal
- 3.Costs of the application in the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- Reference arising from Mombasa High Court Misc. Civil Application No. 227 of 2021
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 43 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atul Shah v Ngonze & Ngonze Advocates", Case Analysis (2026). Notice of Motion dated 12th November 2024 (arising from Mombasa High Court Misc. Civil Application No. 227 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/747/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.