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Court of AppealDismissedCivil Appeal No. 54 of 2018· [2019] KECA 668 (KLR)

Joe Mwanthi & Co. Advocates v David Kihono Waweru [2019] KECA 668 (KLR)

Court of Appeal of Kenya
5 April 2019
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed judges can accept late advocate fee disputes, so missing a 14-day deadline is not automatically fatal.

What this practically means

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Executive summary

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The appellant advocate appealed against a High Court ruling of Mbogholi Msagha J. of 21st February 2017 which allowed the respondent's reference against a taxed advocate/client bill of costs of Kshs. 73,235, set aside the taxation order, and remitted the bill to another taxing master. The appellant raised two grounds: that the Judge ruled twice on the same application (having ordered a stay of lower court proceedings on 4th March 2016 and then allowed the reference in the final ruling), and that the reference was incompetent for non-compliance with Rule 11(1) of the Advocates Remuneration Order, there being no valid notice of objection specifying items and the reference having been filed some 120 days after the 14-day window. The Court of Appeal, in a single judgment of the court delivered by Koome, Kiage and Kantai JJ.A, dismissed the appeal. It held the interim stay order was a proper exercise of discretion to avert rendering the reference moot, and the final ruling merely gave reasons after full hearing. On the reference's competency, the Court agreed Rule 11(1) is not couched in mandatory terms and endorsed the view that Paragraph 11 of the Advocates (Remuneration) Order is a complete code, entitling an aggrieved party to a reference on quantum or validity of the bill. The decision below was affirmed and costs were awarded to the respondent. This judgment now binds subordinate courts on the discretionary nature of Rule 11 time limits and the non-interference principle on discretionary rulings.

Key legal issues

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01

Whether a judge who has made an extempore interim stay order impermissibly rules twice on the same application when giving reasons in a final ruling

Holding

No misdirection; the interim order of stay was a proper exercise of discretionary power to preserve the reference from becoming moot, and the final ruling merely gave reasons after the parties were fully heard

Reasoning

The Court distinguished the two applications before the Judge: one sought stay of the Chief Magistrate's court proceedings, the other was the reference. The 4th March 2016 order was extempore and interlocutory; the 21st February 2017 ruling supplied reasons after full hearing. The stay averted a situation rendering the reference moot. The ground of appeal therefore failed.

p. 3
02

Whether a reference under Rule 11 of the Advocates Remuneration Order is incompetent where filed out of the 14-day period and without a notice specifying the items objected to

Holding

The Rule is not mandatory; the Judge properly exercised discretion to admit the reference out of time, and the Advocates Remuneration Order is a complete code governing objections to taxing officers' decisions

Reasoning

The Court accepted the respondent's submission that Rule 11(1) is not couched in mandatory terms. Relying on Ringera J. in the Leisure Lodges winding-up cause, it held the Order is a complete code, entitling an aggrieved party to a reference on quantum or validity of the bill as a whole or any items. Since the bill was taxed exparte without reasons, the Judge properly ordered issues of validity and quantum to a fresh hearing before another taxing master.

p. 3

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, because of misdirection, reliance on wrong matters, or failure to consider relevant matters leading to a wrong conclusion
  • The time requirement and notice requirements in Rule 11 of the Advocates Remuneration Order are not cast in mandatory terms, and a judge may in discretion admit a reference out of time
  • Paragraph 11 of the Advocates (Remuneration) Order is a complete code conferring recourse to the High Court by way of reference, whether the grievance be on the quantum or on the validity of the bill as a whole or any items thereof

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Actvarious (not specified)
  • Civil Procedure Rulesvarious (not specified)
  • Advocates Remuneration OrderRule 11(1)
  • Advocates (Remuneration) OrderParagraph 11
  • Advocates Remuneration OrderSection 29

Cases cited (3)

  • Machira & Co Advocates vs. Arthur Magugu & Another
    (2012) eKLR
  • Mbogo and Another vs. Shah
    [1968] EA 93
  • Matter of Winding Up of Leisure Lodges Limited
    Winding Up Cause No. 28 of 1996
On appeal from
High Court of Kenya at Nairobi
HCC Misc Cause No. 808 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (appellate/original civil jurisdiction); no specific constitutional or statutory provision invoked in the judgment

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, "Joe Mwanthi & Co. Advocates v David Kihono Waweru [2019] KECA 668 (KLR)", Case Analysis (2019). Civil Appeal No. 54 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/668/eng@2019-04-05

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