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Court of AppealDismissedCivil Application (not stated in judgment)· [2015] KECA 910 (KLR)

Wambugu, Motende & Co. Advocates v Kajulu Holdings Limited & 3 others [2015] KECA 910 (KLR)

Court of Appeal
6 March 2015
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed it cannot grant leave to appeal a taxed advocate-client costs decision—that permission must come from the High Court judge who made it.

What this practically means

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Executive summary

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Wambugu, Motende & Co. Advocates, formerly advocates for Kajulu Holdings Ltd, filed a bill of costs for taxation; the Deputy Registrar upheld the respondents' objection, and a reference to the High Court was dismissed by Havelock J. on 24th April 2014. The applicant asserted it only learned of the ruling on 21st August 2014 and, the time for filing a notice of appeal having expired, moved the Court of Appeal under Rule 4 for leave to file a notice of appeal and to appeal out of time, plus a stay of taxation of the respondents' bill of costs dated 23rd May 2014. The respondents opposed, arguing the application was incompetent because under Rule 11(4) of the Advocates Remuneration Order an appeal against a judge's decision on a reference lies only with the leave of that judge, which the Court of Appeal cannot grant in the first instance, and that the delay was unexplained. Warsame JA held that Rule 11(4) is a clear statutory bar: the applicant never sought leave from the High Court judge, so the Court of Appeal could not grant it in the first instance. Independently, the applicant failed to explain the entire delay, including the unaccounted period between 25th September 2014 and 5th November 2014. The invocation of section 3A of the Appellate Jurisdiction Act failed because the overriding objective cannot displace the Court's rules. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the Court of Appeal may grant leave in the first instance under Rule 11(4) of the Advocates Remuneration Order

Holding

It may not; leave must be sought from and granted by the judge who determined the reference, failing which no appeal lies.

Reasoning

Rule 11(4) expressly restricts appeals to this Court to cases where the judge has granted leave. The applicant never sought leave in the High Court. Since the statutory gatekeeper is the High Court judge, the Court of Appeal cannot arrogate to itself that first-instance function, and the application was incompetent on that ground alone.

p. 3
02

Whether the delay in bringing the application for extension of time was explained

Holding

The delay was unexplained; a party seeking extension of time must account for the whole period and show diligence in following up the decision being appealed.

Reasoning

Even accepting the applicant's claim that it learned of the ruling on 21st August 2014, no follow-up with the Deputy Registrar was demonstrated to explain obtaining the ruling on 25th September 2014, and the further month-long gap to 5th November 2014 was entirely unaccounted for. Unexplained delay is fatal to the exercise of the Court's discretion.

p. 3
03

Whether section 3A of the Appellate Jurisdiction Act (overriding objective) could override the Court's rules

Holding

The overriding objective enriches but does not displace established rules and principles; it cannot rescue an applicant who has failed to comply with the rules and explain delay.

Reasoning

The Court endorsed the settled position that sections 3A and 3B do not uproot established principles or precedent. Clear principles and precedent guide lower courts and maintain stability in the law. An unexplained delay actually militates against the overriding objective, as Waki JA held in Bi-Mach Engineers v Mwangi.

p. 3

Legal principles established

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  • An appeal against a judge's decision on a reference under Rule 11(4) of the Advocates Remuneration Order lies only with the leave of that judge; the Court of Appeal cannot grant such leave in the first instance.
  • An applicant for extension of time must explain the entire period of delay, and the overriding objective cannot be used to displace the rules of the Court.

Court orders

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  1. 1.Application dismissed with costs to the respondents

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11
  • Advocates Remuneration OrderParagraph 11(4)
  • Court of Appeal RulesRule 4
  • Appellate Jurisdiction ActSection 3A

Cases cited (4)

  • Githiaka Versus Nduriri
    [2004] KLR 67
  • Waweru & Another v Kirori
    [2003] KLR 448
  • City Chemist (Nrb) & Another v Oriental Commercial Bank Ltd
    Civil Application No. Nai 302 of 2008 (UR 99/2008)
  • Bi-Mach Engineers Limited v James Kahoro Mwangi
    [2011] eKLR (Civil Application 15 of 2011)
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act

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, "Wambugu, Motende & Co. Advocates v Kajulu Holdings Limited & 3 others [2015] KECA 910 (KLR)", Case Analysis (2015). Civil Application (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/910/eng@2015-03-06

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