Macharia v Maina & Maina Advocates
The bottom line
#The Court of Appeal dismissed a stay application because the applicant skipped the required step of challenging a taxed bill before a High Court judge first.
What this practically means
#Executive summary
#Key legal issues
#Competence of the intended appeals under Rule 11 of the Advocates (Remuneration) Order
The intended appeals are incompetent because the applicant did not file a reference to a judge in chambers against the Deputy Registrar's decision and did not obtain the judge's leave required before appealing to the Court of Appeal.
Rule 11 of the Advocates (Remuneration) Order prescribes a two-step process: an objector must first file a reference to a judge in chambers against the taxing officer's decision, and only a person aggrieved by the judge's decision may, with the judge's leave but not otherwise, appeal to the Court of Appeal. The applicant bypassed both steps, appealing directly against the Deputy Registrar's rulings, so the appeals are in the wrong forum and lack leave.
Whether the intended appeal would be rendered nugatory by execution of the certificate of taxation
No - execution of a certificate of taxation for Kshs. 232,690 would not render the appeal nugatory where the applicant has not shown the respondent, a firm of advocates, would be unable to repay the money.
Even assuming the appeal were properly before the Court, the nugatory test requires demonstration that execution would render the appeal futile. The applicant failed to show that the respondent firm of advocates could not repay the taxed amount if the appeal later succeeded, so the stay could not be justified on that basis.
Legal principles established
#- An appeal to the Court of Appeal against a judge's decision on a reference from a taxing officer's ruling lies only with leave of the judge; a direct appeal against the Deputy Registrar's decision without a reference and without leave is incompetent.
- A stay of execution under Rule 5(2)(b) must be anchored on an appeal initiated by filing a notice of appeal to the Court of Appeal.
Court orders
#- 1.The applicant's motion for stay of execution and further proceedings is dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi (Deputy Registrar, as taxing officer)
- HC (Nairobi) Misc. Civil Application No. 20 of 2013
- Jurisdiction invoked
- Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules (intended appeal against Deputy Registrar's taxation rulings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v Maina & Maina Advocates", Case Analysis (2022). Civil Application 38 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/794/eng@2022-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.