Cannon Assurance Limited v Anthony Thuo Kanai & another [2016] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you must use the statutory dispute process first before rushing to constitutional court with grievances.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court was obliged to adjudicate the constitutional rights claims despite the availability of a statutory remedy
No. The Judge correctly found that the claims under Articles 40 and 41 could be resolved through the taxing master under the Advocates Act and the Advocates Remuneration Order, which provide an exhaustive mechanism.
The cause of action arose from the filing of bills of costs. Section 44 of the Advocates Act empowers the Chief Justice to prescribe advocates' remuneration, and Section 49 together with Order 10 of the Remuneration Order set out the taxation and reference procedure. Where a statute establishes a framework for a grievance, that framework must be used first; the Judge could not be faulted for referring the parties to it.
Whether the Judge failed to determine all issues, offending the duty in Ole Nganai v Arap Bor
No. Ole Nganai was distinguishable; the Judge expressly considered whether constitutional issues emerged and found none, so he addressed the live issues before him.
The proper-forum question was a live issue raised in the respondent's preliminary objection and submissions, and the Judge addressed it. Unlike Ole Nganai, where the judge ignored pleaded issues and granted unclaimed relief, Majanja J. determined the threshold question of whether constitutional issues warranted adjudication and found they did not.
Whether the Judge erred in failing to determine the public interest dimension
No. The public interest element was never pleaded, and pleadings bind both the parties and the court.
In an adversarial system, pleadings are the compass that defines the issues in contestation; without an issue being pleaded a judge cannot be faulted for not determining it. The appellant's reliance on the public interest aspect of fair labour practices was raised for the first time on appeal and could not expand the pleadings.
Distinguishing Mugambi & Co. Advocates v John Okal Ogwayo on the taxing master's jurisdiction over retainer disputes
Mugambi was decided under the High Court's inherent jurisdiction via miscellaneous application, distinguishable from a petition invoking constitutional jurisdiction.
The appellant cited Mugambi for the proposition that retainer disputes are for the High Court, not the taxing master. The Court of Appeal distinguished it: that case invoked the High Court's inherent jurisdiction, whereas this petition invoked constitutional jurisdiction alleging human rights violations; the same basis for choosing a forum did not apply. Whether Sections 32A and 32B applied retrospectively was a substantive issue for the right forum.
Legal principles established
#- Where the law establishes a particular framework or statutory mechanism for dealing with a particular grievance, that framework must be invoked before resort to constitutional adjudication
- Disputes relating to advocates' costs must commence before the taxing master, whose decision may then be challenged by reference to the High Court; only thereafter can subsequent litigation be entertained
- Pleadings bind not only the parties but also the court; a judge cannot be faulted for failing to determine an unpleaded issue
Court orders
#- 1.Appeal dismissed with costs
- 2.It is so ordered
- On appeal from
- High Court of Kenya at Nairobi
- Const. Pet. No. 433 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's determination of a constitutional petition (Article 164 Constitution; appeal as of right against the judgment in Const. Pet. No. 433 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hezekiel Oira T/A H. Oira Advocate v Kenya Broadcasting Corporation[2015] KEHC 1352 (KLR)26 May 2015distinguished
- Al Yusra Restaurant Limited v Kenya Conference of Catholic Bishops & Knight Frank Kenya Ltd[2014] KEHC 8461 (KLR)21 Nov 2014
Cite this brief
#Cite this brief
Caselaw, "Cannon Assurance Limited v Anthony Thuo Kanai & another [2016] KECA 74 (KLR)", Case Analysis (2016). Civil Appeal No. 177 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/74/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.