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Court of AppealAllowedCivil Appeal No 165 of 2008

Anthony Milimu Lubulellah, Advocates v Patrick Mukiri Kabundu & 3 0thers [2019] KECA 816 (KLR)

Court of Appeal
8 March 2019
PWP. N. WakiSKS. Gatembu KairuFSF. Sichale
2,087 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that no one—not even a lawyer—can be ordered to pay costs without being heard first.

What this practically means

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Executive summary

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The appellant, a firm of advocates, appealed against orders made by Ojwang, J. on 31st August 2004 'clarifying' order No. 7 of his judgment of 7th May 2004 in HCCC No. 649 of 1996. The clarified order directed that the defendants' costs in the suit be borne by all counsel who had been on record for the second plaintiff from the beginning of the suit, jointly and severally, with interest. The appellant contended that the orders were made on a mere mention date without substantive grounds, that no hearing notice was served on him or on the plaintiffs and former advocates, and that no substantive orders should have been made on a mention date. The respondents maintained that only a clarification, not a substantive order, was made, invoking section 99 of the Civil Procedure Act, and that no appeal lay against the earlier rulings of Ombija and Ojwang, JJ. The Court of Appeal, allowing the appeal, held that the orders of 31st August 2004 were admittedly made during a mention, that the appellant and other former counsel were not invited to attend, and that no hearing notice had been served. Applying its precedents in J.B. Kohli v Bachulal Popatlaw and Rahab Wanjiku v Esso Kenya Limited, the court held that a judge has no business determining substantive issues on a mention date without the parties' consent, and that the right to be heard is an enduring principle of natural justice. The appeal was allowed, the orders of 31st August 2004 were set aside in their entirety, and costs were awarded to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether substantive orders adversely affecting the appellant could lawfully be made on a mention date without notice or hearing
  2. 2.Whether the 'clarification' of the judgment of 7th May 2004 made on 31st August 2004 was valid, including whether it was an amendment under section 99 of the Civil Procedure Act
  3. 3.Whether the appellant, as counsel previously on record for the plaintiffs, could be condemned to pay costs personally without being heard

Key legal issues

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01

Making substantive orders on a mention date

Holding

It was impermissible for the High Court to make the orders of 31st August 2004 on a mention date; the orders were made during a mention and the appellant was not invited to attend.

Reasoning

The court reaffirmed its earlier decisions holding that a judge had no business determining substantive issues on a mention date unless the parties agreed and counsel were heard. The appellant, against whom adverse costs orders were made, was not invited to the mention and no hearing notice was served on him. Such an approach is repugnant to the administration of justice and offends the enduring natural justice principle that no party should be condemned unheard.

p. 3
02

Right to be heard before adverse personal costs orders against counsel

Holding

Counsel cannot be saddled with personal liability for costs without notice and an opportunity to answer the complaint against him.

Reasoning

Relying on J.B. Kohli v Bachulal Popatlaw, where a judge erred in ordering an appellant to pay costs personally without giving him an opportunity to answer the complaint, the court held that the right to be heard is an enduring principle of natural justice. The appellant, as legal counsel affected by the costs order, ought to have been heard before being condemned to pay costs, and his absence was not regularised by any service of hearing notice.

p. 3

Legal principles established

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  • A court may not determine substantive issues between opposing parties on a mention date without the parties' consent and without hearing them; doing so violates the principles of natural justice.
  • A party, including counsel previously on record, cannot be condemned to pay costs personally without being given an opportunity to be heard and without service of a hearing notice.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of Ojwang, J. issued on 31st August 2004 set aside in their entirety
  3. 3.Costs to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
SK
majority
FS
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No 649 of 1996
Jurisdiction invoked
First appeal against the judgment of the High Court under the Court of Appeal's appellate jurisdiction

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result we allow the appeal and set aside the orders of Ojwang, J. issued on 31st August 2000 in their entirety. Costs to the appellant.
p. 3Final orders - disposition
The right to be heard is an enduring principle of natural justice that ensures a party is not condemned unheard.
p. 3Natural justice - audi alteram partem
the learned judge had no business determining on the date, the substantive issues in the matter
p. 3Substantive orders on a mention date
The Judge erred in ordering the 1st appellant to pay costs personally without giving him an opportunity to answer the complaint against him.
p. 3Personal costs orders against a party not heard

Issues in the judgment

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minor

Internal date inconsistencies: the judgment refers to the ruling of Ombija, J. 'delivered on 10th February 2018' although it was earlier stated as 10th February 2004; and the final orders refer to orders 'issued on 31st August 2000' although the orders under appeal were made on 31st August 2004.

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, "Anthony Milimu Lubulellah, Advocates v Patrick Mukiri Kabundu & 3 0thers [2019] KECA 816 (KLR)", Case Analysis (2019). Civil Appeal No 165 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/816/eng@2019-03-08

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