Joe Mwanthi & Co. Advocates v David Kihono Waweru [2019] KECA 668 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
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
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.