Wambugu, Motende & Co. Advocates v Kajulu Holdings Limited & 3 others [2015] KECA 910 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Court of Appeal may grant leave in the first instance under Rule 11(4) of the Advocates Remuneration Order
It may not; leave must be sought from and granted by the judge who determined the reference, failing which no appeal lies.
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.
Whether the delay in bringing the application for extension of time was explained
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.
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.
Whether section 3A of the Appellate Jurisdiction Act (overriding objective) could override the Court's rules
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.
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.
Legal principles established
#- 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
#- 1.Application dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.