[2021] KEHC 4935 (KLR)
The court held that since the judgment and decree on costs had been set aside, there was no legal basis for the respondent/advocate to collect the deposited funds at this stage. The absence of a subsisting judgment or decree precluded execution or payment to the respondent, notwithstanding the existence of...
Source-derived case information.
- Citation
- [2021] KEHC 4935 (KLR)
- Parties
- Applicant: Parin Sharrif; Applicant: Nazlin Nizar Jetha; Applicant: Yasmin Janmohammed; Applicant: Anar Hanali; Respondent: Cecil Miller T/A Miller & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 108 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Post Taxation Applications and Interim Orders
- Outcome
- Order for release of deposited funds to respondent reviewed; leave to appeal granted; stay application to be formally filed; funds to remain in court pending further orders.
- Judges
- AO Muchelule
- Legal Topics
- Taxation of Costs, Advocate Client Disputes, Stay of Execution, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parin Sharrif
Applicant
Nazlin Nizar Jetha
Applicant
Yasmin Janmohammed
Applicant
Anar Hanali
Applicant
Cecil Miller T/A Miller & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Taxation Applications and Interim Orders
Legal Issues
- 1 Whether the respondent/advocate is entitled to the release of the deposited taxed costs in the absence of a subsisting judgment or decree.
- 2 Whether the applicants/clients are entitled to leave to appeal and a stay of the orders for release of the money.
Ratio Decidendi
The court held that since the judgment and decree on costs had been set aside, there was no legal basis for the respondent/advocate to collect the deposited funds at this stage. The absence of a subsisting judgment or decree precluded execution or payment to the respondent, notwithstanding the existence of unchallenged certificates of taxation. The court therefore reviewed its earlier order for release of the funds. Leave to appeal was granted as a matter of right to the aggrieved party. On the issue of stay, the court directed that a formal application be made and served, with timelines for responses and submissions, and ordered that the funds remain deposited in court pending further...
Court Disposition
Order for release of deposited funds to respondent reviewed; leave to appeal granted; stay application to be formally filed; funds to remain in court pending further orders.
Orders
- The order for the respondent/advocate to collect the deposited money is reviewed and set aside.
- Leave to appeal is granted to the applicants/clients.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. CAUSE NO. 108 OF 2012
IN THE MATTER OF THE ADVOCATES ACT
AND
IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT
BETWEEN
PARIN SHARRIF.......................................................................................1ST APPLICANT
NAZLIN NIZAR JETHA.........................................................................2ND APPLICANT
YASMIN JANMOHAMMED..................................................................3RD APPLICANT
ANAR HANALI........................................................................................4TH APPLICANT
-VERSUS-
CECIL MILLER T/A MILLER & CO. ADVOCATES............................RESPONDENT
RULING
1. On 7th May 2020 this court allowed the applicants/clients to deposit into court Kshs.58,553,150/= as a condition to having their application dated 17th May 2015 seeking extension of time to file a reference to the taxed costs by the respondent/advocate to be heard and determined. It was on that basis that the judgment entered for the respondent/advocate against the applicants/clients was set aside. The amount was deposited. I have dismissed with costs the application to enlarge time to file reference. I ordered the deposited amount to go to the respondent/advocate to settle the decretal amount contained in the certificate of costs.
2. Mr. Mwangi for the applicants/clients then pointed out to me that there being no judgment of the costs, the one being in place having been set aside, there would be no basis to order the amount to go to the respondent/advocate. This is because the respondent/advocate has no decree that he can execute. Mr. Ouma for Mr. Murgor for the respondent/advocate indeed agreed that the judgment was set aside. He however insisted on the release of the money because the certificates of taxation remained unpaid.
3. It is common ground that the certificates have not been paid, and there is no reference and therefore no challenge to the taxation. Mr. Mwangi sought leave to appeal my ruling and a stay of the orders for the release of the money to the respondent/advocate.
4. In view of the fact that the judgment and decree on costs were set aside, I review my order to have the respondent/advocate collect the money deposited into court.
5. On the issue of leave to appeal, I grant it. Every party has the right to challenge on appeal any order that has aggrieved him.
6. On the issue of stay of the dismissal of the application to enlarge time to file reference, I ask the applicants/client to make a formal application and serve within 3 days. Upon service the respondent/advocate shall have 3 days to respond. The parties shall then exchange written submissions on the same. The matter shall be mentioned on 15th July 2021 to take a ruling date. In the meantime, the money shall remain deposited into court.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JULY, 2021
A.O. MUCHELULE
JUDGE