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Court of AppealDismissedCivil Application No. NAI 38 of 2011 (UR 24/2011)· [2014] KECA 359 (KLR)

Kenya Union of Savings & Credit Co-operative Limited v Onsando Osiemo T/aonsando Osiemo & Company Advocates

Court of Appeal of Kenya
3 October 2014
1,270 words in judgment
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The bottom line

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The Court of Appeal refused KUSCCO permission to challenge a Kshs 1.3 million taxation ruling, finding its three-month delay unexplained and its appeal without realistic prospects of success.

What this practically means

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Executive summary

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This Court of Appeal ruling disposed of a notice of motion by the Kenya Union of Savings & Credit Co-operative Limited seeking leave to appeal against a ruling of Koome J dated 28th January 2011 in HCCC No. 81 of 2005, together with a stay of further proceedings pending the intended appeal. The dispute arose from an advocate-client taxation in which the respondent advocate's bill was taxed at over Kshs 1.3 million; the applicant did not object within the prescribed time and its later application for extension of time to object, and for stay of execution, was dismissed by the High Court, as was a subsequent application for leave to appeal. The respondent did not appear before the Court of Appeal despite service. Restating the settled principles in Sango Bay Estates v Dresdner Bank AG and J. P. Machira v Wangethi Mwangi, the Court held that leave is granted where grounds of appeal merit serious judicial consideration, refused where the applicant has no realistic prospects of success, and that a stronger case is required where the order below was made in the exercise of judicial discretion. Finding the applicant's three-month delay unexplained, its failure to seek the taxing master's reasons contrary to Rule 11 of the Advocates Remuneration Order, and no novel point of law raised, the Court dismissed the application and made no orders on costs since the respondent did not appear.

Key legal issues

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01

Test for grant of leave to appeal from a decision of the High Court

Holding

Leave is granted where there are grounds of appeal meriting serious judicial consideration; leave is refused where the applicant has no realistic prospects of success, and a stronger case is needed where the order was made in the exercise of judicial discretion

Reasoning

The Court restated the settled principles from Sango Bay Estates and J. P. Machira: leave is a matter of discretion, granted where grounds merit serious judicial consideration, refused only where no realistic prospects of success exist, with a stronger case required to disturb an order made in the exercise of judicial discretion.

p. 2
02

Whether the applicant demonstrated a basis for leave where it sought extension of time to object to a taxation

Holding

No leave: the applicant delayed three months, did not request the taxing master's reasons as required by Rule 11 of the Advocates Remuneration Order, and gave no serious explanation, so no wrong exercise of discretion or novel point of law was shown

Reasoning

The applicant's application for extension of time was made three months after taxation, without requesting the taxing master's reasons as Rule 11 of the Advocates Remuneration Order requires. Delay was unexplained beyond a casual, undisclosed blame of former advocates. Hence the High Court's discretionary ruling could not be disturbed and the intended appeal raised no novel point of law.

p. 3

Legal principles established

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  • Leave to appeal should normally be granted where prima facie there are grounds of appeal meriting serious judicial consideration; the Court will refuse leave only where the applicant has no realistic prospects of success, and a stronger case is required where the order appealed from was made in the exercise of judicial discretion

Court orders

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  1. 1.The application for leave to appeal and stay of proceedings is dismissed
  2. 2.No orders on costs, the respondent not having appeared to defend the application
On appeal from
High Court of Kenya at Nairobi
HCCC No. 81 of 2005
Jurisdiction invoked
Leave to appeal from the High Court under the Court of Appeal Rules, 2010 (application cited as under Orders 39(b), 41 and 47(1) of those Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Savings & Credit Co-operative Limited v Onsando Osiemo T/aonsando Osiemo & Company Advocates", Case Analysis (2014). Civil Application No. NAI 38 of 2011 (UR 24/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/359/eng@2014-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.