[2014] KEHC 4060 (KLR)
The court found that there was no judgment or decree in relation to the certificate of taxation dated 24th October 2012. Execution proceedings based solely on the certificate of taxation, without its adoption as a judgment and extraction of a decree, are illegal, null, and void ab initio. As such, there was nothing...
Source-derived case information.
- Citation
- [2014] KEHC 4060 (KLR)
- Parties
- Applicant: Kilonzo and Company Advocates; Respondent: Vipul Premchand Haria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 35 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Stay of Execution, Certificate of Taxation, Advocate Client Costs, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kilonzo and Company Advocates
Applicant
Vipul Premchand Haria
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted where there is no judgment or decree in place.
- 2 Whether execution proceedings based on a certificate of taxation without judgment or decree are lawful.
- 3 Whether the existence of similar applications in different courts constitutes an abuse of process.
Ratio Decidendi
The court found that there was no judgment or decree in relation to the certificate of taxation dated 24th October 2012. Execution proceedings based solely on the certificate of taxation, without its adoption as a judgment and extraction of a decree, are illegal, null, and void ab initio. As such, there was nothing to stay, and any purported execution was a nullity in law. Furthermore, the existence of a similar application before the Court of Appeal constituted an abuse of process, as parallel applications in different courts could lead to conflicting decisions. The court dismissed the application for stay, holding that the applicant may seek similar orders in the future once the proper...
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
MISC. APPL. NO. 35 OF 2010
KILONZO AND COMPANY ADVOCATES :::: APPLICANT/RESPONDENT
VERSUS
VIPUL PREMCHAND HARI ::::::::::::::::::::: RESPONDENT/APPLICANT
R U L I N G
The application before the court is a Notice of Motion dated 12th February 2014. It seeks as the remaining prayer an order that:-
Pending the hearing and determination of the Court of Appeal, Civil Application Number Nai 11 of 2014 (UR 6/2014) there be a stay of execution of the Certificate of Taxation dated 24th October 2012.
The application is premised on the several grounds stated therein among them that the Respondent/Advocate was awarded Advocate/Client costs amounting to Kshs.7,831,247. Being aggrieved by the award the Applicant filed a reference to this court which was dismissed by this court vide a Ruling delivered on 5th December 2013. The Applicant then filed an appeal being Civil Application Number Nai 11 of 2014 (UR 6/2014) which is pending before the Court of Appeal and has been certified urgent by that court. In the meantime, the Applicant alleges that the Respondent has purported to proclaim the Applicant’s goods in execution of the said Certificate of Taxation dated 24th October 2012, despite the fact that no Judgement has been entered on the basis of the said taxed costs or a decree issued thereto. This is why a stay of execution is now sought in this matter.
The application is supported by affidavit of MR. VIPUL PREMCHAND HARIA,dated 12th February 2014with annextures.
The application is opposed through a replying affidavit by MUTULA KILONZO JUNIORdated 20th February 2014.
I have perused and considered the application and opposition to the same. The first thing that comes to my mind is that there is no Judgement or a decree of this court in relation to the Certificate of Taxation dated 24th October 2012. My understanding is that the Certificate of Taxation under Advocate/Client bill of costs must first be adopted as a Judgement of the court and a decree extracted therefrom before it can be executed against the property of the Debtor. There is no evidence to that effect before the court. If there are any execution proceedings as alleged by the Applicant, then that is illegal, null and void abinitio.
Secondly, the Applicant’s application before the court is substantially similar with the Applicant’s application before the Court of Appeal being Civil Application Number Nai 11 of 2014. There cannot be two similar applications in different courts for obvious legal reasons, including the possibility of conflicting decisions. There is an abuse of process of this court by the Applicant.
In the light of the foregoing observations both parties herein are at grave faults. There is no Judgement or a decree in the matter herein. The entire purported execution process is a nullity in law, void abinitio. There is therefore nothing to stay in the circumstances. On the other hand, given that there is a similar application in the Court of Appeal, the Applicant must decide which of the two applications shall proceed and which one shall be stayed. Of paramount interest to the Applicant however, is my finding that there is neither a Judgement nor a decree in the matter before the court, and that there is nothing to stay and any purported executions are illegal void abinitio. This leaves the Advocate/Respondent the liberty to still secure the Judgement and decree in this matter and to proceed in the regular manner. It also means that at some stage in the future the Applicant herein may still come to this court for the same orders once the process herein lawfully matures.
Pursuant to the foregoing the Advocate/Respondent shall meet any costs occasioned by the purported execution process. But in response to this application, the same is dismissed with each party bearing their own costs.
DATED, READ AND DELIVERED AT NAIROBI THIS 6TH DAY OF JUNE 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Miss Makobu for Applicant/Respondent
No appearance for Respondent/Applicant
Teresia – Court Clerk