East African Power Management Limited v Stephens Kithi Ngombo T/a Steve Kithi & Company Advocates [2012] KECA 170 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a client taxed without being served can use the court's inherent powers to set aside that taxation.
What this practically means
#Executive summary
#Key legal issues
#Availability of section 3A Civil Procedure Act route to set aside an ex parte certificate of taxation
Because there is no provision in the Advocates Act or the Advocates (Remuneration) Order for setting aside an ex parte order of taxation, and the appellant was unaware of the taxation, resort to the Civil Procedure Rules and the court's inherent powers was proper.
The court accepted that the Advocates (Remuneration) Order is a self-contained code with no reference to the Civil Procedure Rules, and Rule 11 presupposes knowledge of the decision to be objected to. Since the appellant was never served and thus could not have filed a Rule 11 objection within 14 days, the inherent jurisdiction to make orders necessary for the ends of justice and to prevent abuse of process was available. The striking out of the motion on jurisdictional grounds was therefore erroneous.
Non-service of the notice of taxation
There being no affidavit of service on record, the court concluded the appellant was not given an opportunity to be heard before the bill was taxed, amounting to a failure of justice.
The record of the taxation before the Deputy Registrar showed only the advocate's counsel present, with no notice of appointment, response or affidavit of service by the appellant, even in the related file (Misc. Civil Application No. 505 of 2004). The court held that had the learned Judge addressed the absence of service, he would probably have reached a different conclusion, since non-service meant the appellant could not bring itself within Rule 11.
Determination of a preliminary objection in place of the application
The learned Judge set out to determine the Notice of Motion but in fact determined only a preliminary objection, leaving the merits of the application unaddressed - a further error in the proceedings.
Although the preliminary objection was argued within the application, the ruling struck the motion out on the basis that the wrong statutory regime had been invoked, without considering the merits. Combined with the non-service finding, this warranted setting the ruling aside and remitting the bill for fresh taxation before a different Deputy Registrar.
Legal principles established
#- Where a party was never served with notice of taxation and was unaware of the ex parte taxation, it cannot be required to follow the 14-day objection procedure under Rule 11 of the Advocates (Remuneration) Order, and may instead invoke the court's inherent power under section 3A of the Civil Procedure Act to set aside the ex parte order of taxation.
- A party deprived of a hearing before an advocate/client bill of costs is taxed ex parte is entitled to be heard on the bill, where no prejudice incapable of compensation in costs is shown.
Court orders
#- 1.Appeal allowed
- 2.The order made on 12th October (striking out the appellant's Notice of Motion) set aside
- 3.The Advocates/Client Bill of Costs to be submitted for taxation before another Deputy Registrar
- 4.Appellant to have the costs of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 506 of 2004
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution (sent as of right from the High Court decision striking out the appellant's application)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenneth K. Mwangi v City County of Nairobi & 2 others [2017] KECA 434 (KLR)[2017] KECA 434 (KLR)14 Jul 2017
Cite this brief
#Cite this brief
Caselaw, "East African Power Management Limited v Stephens Kithi Ngombo T/a Steve Kithi & Company Advocates [2012] KECA 170 (KLR)", Case Analysis (2012). Civil Appeal 56 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/170/eng@2012-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.