Karuturi Networks Limited & another v Daly & Figgis Advocates [2009] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal halted a Kshs 56 million legal fee taxation, confirming courts can now use the overriding objective to grant flexible interim relief.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal against the striking out of the applicants' appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if a stay of proceedings (the taxation) is not granted
- 3.Whether the incorporation of the overriding objective (sections 3A and 3B of the Appellate Jurisdiction Act and sections 1A and 1B of the Civil Procedure Act) expands the Court's latitude in granting interim relief
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable: both the existence or not of a fee agreement and the jurisdictional issue under section 45(6) of the Advocates Act are not frivolous.
The Court did not delve into the merits but found the questions of whether an advocate/client fee agreement existed under section 45(6) of the Advocates Act, and whether the taxing master had jurisdiction to tax in a non-contentious matter where such an agreement exists, raised substantial matters warranting full argument before the Court.
Nugatory value and balancing of hardships
The balance tilted in favour of a stay because the applicant would pay a substantial contested fee note (approximately Kshs 56 million) with no guarantee of repayment by the law firm should the appeal succeed.
The Court weighed the hardship to the respondent firm of delayed payment against the applicant's risk of paying a large sum to a firm that had exhibited no evidence of means to repay. It also considered the delay, extra costs and lack of finality from successive proceedings if taxation proceeded, concluding that these considerations might render the intended appeal nugatory.
Effect of the overriding objective on Rule 5(2)(b) applications
The overriding objective enhances the Court's jurisdiction and latitude, permitting the Court to balance the parties' claims and hardships and design a stay order on terms.
Following the 2009 amendments (State Law (Miscellaneous Amendment) Act No. 6 of 2009) inserting sections 3A and 3B into the Appellate Jurisdiction Act and sections 1A and 1B into the Civil Procedure Act, the Court must facilitate just, expeditious, proportionate and affordable resolution. Dealing with a case justly includes reducing delay and costs, acting expeditiously and fairly, and actively managing cases including granting appropriate interim relief in deserving cases.
Whether a stay lies against an order striking out an appeal
The only order capable of being stayed following a striking-out order is the taxation proceedings, since the striking-out itself was not a positive order.
Applying the Ndungu Kinyanjui principle, an order striking out an appeal is not a positive order requiring anything to be done, so there is nothing in it to enforce or restrict; the legally stayable aspect was the pending taxation, which the Court restrained pending the intended appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must first show the intended appeal is arguable (not frivolous) and second that, if stay is not granted, the appeal will be rendered nugatory if it ultimately succeeds.
- The overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act and sections 1A and 1B of the Civil Procedure Act enhances the Court's jurisdiction and latitude, permitting innovation in case management including granting appropriate interim relief on terms to balance the parties' hardships.
- Where the court below has made no positive order (nothing to do, refrain from doing, or pay), a stay under Rule 5(2)(b) can only legally operate on the aspect that is enforceable, such as staying proceedings.
Court orders
#- 1.Stay of proceedings (including the taxation scheduled for 29th October 2009) pending the lodging, hearing and determination of the intended appeal
- 2.Application allowed with costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.M.C. No. 278 of 2008
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result the application is allowed with costs in the appeal. It is so ordered.
we think the balance tilts in favour of granting a stay
It follows therefore that the jurisdiction of this Court has been enhanced and its latitude expanded in order for the Court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective as set out above including its principal aims.
Happily the two requirements have by and large stood the test of time and will continue to be important guidelines in the future.
Issues in the judgment
#The judgment states the appeal against the taxing master's ruling was listed for hearing on 25th June 2004, which appears to be a typographical error for 2009 given the chronology.
The judgment variously describes the fee claimed as US$ 800,700 in the bill of costs, US 91,000 in the fee note, and approximately Kshs 56 million as the contested fee note, without reconciling these figures.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karuturi Networks Limited & another v Daly & Figgis Advocates [2009] KECA 8 (KLR)", Case Analysis (2009). Civil Application 292 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/8/eng@2009-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.