Upward Scake Investments Co. Ltd & 7 others v Mwangi Kang’ara Advocate [2015] KECA 371 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop taxation of a Ksh 150 million legal bill, ruling that fear of an outcome is not a reason for a stay.
What this practically means
#Executive summary
#Key legal issues
#Competence of pleadings filed by an advocate without a current practising certificate appearing as proprietor of the firm
The court declined to strike out the pleadings because Ms. Mwangi was defending herself as the proprietor of the firm name, which has no legal status, and Rule 22(1) permits a party to appear in person.
It was common ground that the respondent was a firm name or business name for Mercy Nduta Mwangi, who was not controverted to be its proprietor. Rule 22(1) of the Court of Appeal Rules allows a party to appear in person or by advocate. Since the firm is not a corporation and Ms. Mwangi was acting to defend herself as proprietor, the court left the issue and declined to strike out the pleadings.
Principles governing stay applications under Rule 5(2)(b) of the Court of Appeal Rules
An applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory unless the stay or injunction is granted; both principles must be satisfied.
The court restated the settled principles from Ismael Kagunji Thande v Housing Finance Kenya Ltd: the jurisdiction under Rule 5(2)(b) is original and discretionary, guided by the twin tests of arguability and nugatory-ness. The applicants failed the second limb because their fear of an adverse taxation outcome was speculative and no taxation had occurred.
Whether mere apprehension of an adverse outcome before the taxing master justifies a stay of taxation
No. Apprehension based on an assumption or fear of what may happen before the taxing officer is not a basis for court orders; the applicants must submit to the taxation process and, if dissatisfied, file a reference in the High Court.
The bills of costs had not been taxed, so no grievance capable of grounding a stay existed. The applicants themselves had sought the order compelling the advocate to file her bills under section 47(1) of the Advocates Act, and that order subsisted. The court cannot assume what a constitutionally ordained court will do; parties must have faith in the court structure. Objections to a taxing officer's ruling lie by way of reference under paragraphs 11 and 12 of the Advocates Remuneration Order.
Competency of the appeals for want of leave to appeal
Although the Advocates Remuneration Order contemplates references rather than appeals to the Court of Appeal, the court proceeded to determine the motions on merit in view of the applicants' extant leave and the Court's broad mandate under Article 164(3)(a).
The court acknowledged there is no provision for an appeal to the Court of Appeal against a taxing officer's order, objections lying by reference to the High Court. However, the High Court had granted leave to appeal out of time on 20th March 2015, and no taxation had taken place. Guided by Article 164(3)(a), the court elected to determine the motions on merit rather than strike them out for want of leave.
Abuse of court process through duplicative applications and voluminous irrelevant filings
Filing two similar applications over the same subject matter and lodging thousands of pages of largely irrelevant papers is an abuse of process that must be discouraged in favour of the overriding objective.
The applicants filed two similar applications under Rule 5(2)(b) without explanation, and records running into about five volumes per application, most of which had nothing to do with whether the appeal was arguable. The court condemned this practice as an odious task for the court and urged parties and advocates to plan litigation in a manner that promotes the overriding objective in the administration of justice under section 3A of the Appellate Jurisdiction Act.
Legal principles established
#- A preliminary objection is not a procedure known to the Court of Appeal, being provided for neither in the Appellate Jurisdiction Act nor the Court of Appeal Rules
- An application under Rule 5(2)(b) must establish both an arguable appeal and that the appeal will be rendered nugatory absent the stay or injunction sought
- Mere apprehension or fear of what a taxing officer may do cannot be the basis for the issuance of stay orders; the Court will not assume what a court of competent jurisdiction will do in discharging its statutory mandate
- Disputes over the quantum of advocates' fees are for the taxing officer, and objections lie by way of reference to the High Court under the Advocates Remuneration Order, not by appeal to the Court of Appeal
- Filing two similar applications over the same subject matter and overloading the court with irrelevant paperwork is an abuse of the court process and must be discouraged
Court orders
#- 1.The applicants' applications for stay of taxation and further proceedings dismissed with costs
- 2.The respondent's pleadings not struck out; the objection to Mercy Nduta Mwangi's competence to act declined
- 3.Costs of the applications granted to the respondent
- On appeal from
- High Court of Kenya
- H.C.M.A No. 530 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Article 164(3)(a) of the Constitution; Section 3A of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Upward Scake Investments Co. Ltd & 7 others v Mwangi Kang’ara Advocate [2015] KECA 371 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 83 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/371/eng@2015-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.