Simon Mara Khate v Annet Mulamasi & Co. Advocates
The bottom line
#The Court of Appeal dismissed a client's challenge to legal fees because he skipped the mandatory step of taking the dispute to the High Court first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellate jurisdiction of the Court of Appeal was properly invoked in a taxation dispute absent a reference to a High Court judge
- 2.Whether the appeal was filed out of time and defective for challenging orders of 8th July 2015 and 5th August 2015
Key legal issues
#Invocation of the Court of Appeal's appellate jurisdiction in taxation matters
The jurisdiction was not properly invoked because no reference had been dealt with by a High Court judge; the matter was prematurely before the Court.
Paragraph 11 of the Advocates Remuneration Order prescribes a mandatory sequence: objection to the taxing officer, then a chamber summons reference to a judge, then appeal to the Court of Appeal only with the judge's leave. Since no reference to a judge occurred, the appeal was premature and the Court lacked jurisdiction.
Timeliness and competence of the notice of appeal
The notice of appeal filed on 4th January 2018 was way out of time and defective as it did not mention the earlier orders of 8th July 2015 and 5th August 2015 which the appellant sought to set aside.
Although the memorandum of appeal targeted the ruling of 25th November 2015, the prayers sought to set aside costs orders in Bungoma HCCC No. 74 of 2010 and HCCC No. 8 of 2012, which were taxed on 8th July 2015 and reviewed with dismissal on 5th August 2015. The notice of appeal did not mention those earlier orders and was filed long outside the limitation period.
Legal principles established
#- A decision of a taxing officer may only be challenged by way of a reference to the High Court, and an appeal to the Court of Appeal lies only with the leave of the Judge upon such a reference.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma (Deputy Registrar, Yalwala, DR.)
- HC. Misc. Application No. 125 of 2014
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order - appeal to the Court of Appeal only with leave of the Judge, following a reference to a High Court judge
Relief refused
#Setting aside the Deputy Registrar's ruling and orders on taxation
Appeal prematurely before the Court as no reference to a High Court judge was made; notice of appeal also out of time and defective
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Paragraph 11 is clear on how the appellate jurisdiction of this Court may be invoked in taxation proceedings.
The decision of the Deputy Registrar can only be challenged by way of a reference to the High Court. Therefore, the appellate jurisdiction of this Court has not been properly invoked.
For these reasons, we find that this appeal must fail. It is accordingly dismissed with costs.
Issues in the judgment
#Notice of appeal date appears as 4th January 2018 in the judgment, which post-dates the appeal number of 2016 and may be a typographical error for 2016.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Mara Khate v Annet Mulamasi & Co. Advocates", Case Analysis (2019). Civil Appeal No. 25 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1057/eng@2019-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.