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Court of AppealAllowedCivil Appeal 56 of 2008· [2012] KECA 170 (KLR)

East African Power Management Limited v Stephens Kithi Ngombo T/a Steve Kithi & Company Advocates [2012] KECA 170 (KLR)

Court of Appeal
16 March 2012
1,998 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This Court of Appeal judgment, delivered by the full bench of Onyango Otieno, Koome and Okwengu, JJA, concerned an advocate/client bill of costs taxed ex parte against East African Power Management Limited without proof of service. The appellant learned of the taxation only when served with a winding-up petition by the advocate, and moved under Order L rule 17 of the Civil Procedure Rules and section 3A of the Civil Procedure Act to set aside the certificate of taxation. Sergon, J struck out the motion on a preliminary objection, holding that the Advocates (Remuneration) Order governed and that the High Court could only step in at the stage the Order prescribed. The Court of Appeal allowed the appeal. Although it accepted that the Remuneration Order is a self-contained procedure, it held that because the appellant was never served with notice of taxation and was unaware of the proceedings, it could not have invoked the 14-day Rule 11 objection procedure, and was entitled to fall back on the Civil Procedure Rules and the court's inherent powers to secure the ends of justice. The court found, on a record devoid of any affidavit of service, that the appellant was denied a hearing, a failure of justice the Judge below would have regarded had he addressed it. It further noted the Judge determined only a preliminary objection and never reached the merits of the motion. The court set aside the striking-out order, directed that the bill be taxed afresh before another Deputy Registrar, and awarded the appellant the costs of the appeal. This ruling now binds subordinate courts and the High Court on the availability of the inherent jurisdiction where a party was never served with notice of taxation.

Key legal issues

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01

Availability of section 3A Civil Procedure Act route to set aside an ex parte certificate of taxation

Holding

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.

Reasoning

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.

p. 4
02

Non-service of the notice of taxation

Holding

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.

Reasoning

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.

p. 3
03

Determination of a preliminary objection in place of the application

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.The order made on 12th October (striking out the appellant's Notice of Motion) set aside
  3. 3.The Advocates/Client Bill of Costs to be submitted for taxation before another Deputy Registrar
  4. 4.Appellant to have the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder L, rule 17
  • Civil Procedure ActSection 3A
  • Advocates ActRule 72 (as cited by the court)
  • Advocates (Remuneration) OrderRule 11
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.