Insurance Regulatory Authority v Waweru Gatonye & Company Advocates
The bottom line
#Kenya's Court of Appeal refused to stop the Insurance Regulatory Authority from paying a law firm Kshs.262 million in legal fees, dismissing its stay application with costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdictional challenge based on defective notice of appeal
Objection to a notice of appeal must be raised by an application to strike out under rule 84 within thirty days of service; the Court would not entertain the objection and determined the application on its merits.
The respondent alleged the notice of appeal was neither lodged nor endorsed by the Deputy Registrar under rules 10 and 75. The Court held the proper course was a rule 84 striking-out application within thirty days of service, and declined to say more, proceeding to the merits.
Arguability of the intended appeal on taxation principles
The intended appeal is not arguable; the taxing officer applied the correct charging schedule (Order 6, Paragraph 1(b)) and ascertained the value of the subject matter from the plaint, and the judge correctly upheld the taxation.
Applying Joreth Ltd v Kigano & Associates, the Court held instruction fees in a liquidated claim are determinable with exactitude from the amount claimed, are charged once regardless of the stage of the suit, and the applicant never alleged the tabulation was wrong or contrary to Schedule 6.
Nugatory aspect and public interest
No nugatory aspect was established: the applicant did not allege the respondent could not refund the decretal sum, and its claims of operational disruption were unsupported by evidence.
The onus lay on the applicant to prove the respondent's inability to refund. Following Tobias O. See v Maseno University and Kenya Hotel Properties Ltd v Willesden Investments, mere assertion of hardship without documentary material of financial position cannot justify stay, even where public interest is invoked.
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy the Court that the appeal is arguable and that unless stay is granted the appeal, if successful, will be rendered nugatory.
- A judge on a reference from taxation will not interfere with the taxing officer's discretion unless the taxing officer erred in principle.
- Instruction fees are an independent and static item charged only once and are not affected by the stage the suit has reached; in a liquidated claim the fee is determinable with exactitude from the amount claimed.
- The onus lies on the applicant for stay to prove that the respondent will be unable to refund the judgment sum if the appeal succeeds.
- Mere assertion of hardship is insufficient; an applicant must place its financial position and the effect of payment on the table.
Court orders
#- 1.Dismissal of the Notice of Motion dated 8th December 2021 seeking stay of execution of the judgment and orders of Majanja, J. and of the Garnishee Order Nisi
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- High Court Misc. Application No. E207 of 2019 as consolidated with High Court Misc. Application No. E1061 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Insurance Regulatory Authority v Waweru Gatonye & Company Advocates", Case Analysis (2022). Civil Application E440 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/916/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.