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Court of AppealDismissedCivil Appeal (Application) 69 of 2020· [2022] KECA 1119 (KLR)

Kinyua Muyaa & Co Advocates v Kenya Ports Authority Pension Scheme & 8 others

Court of Appeal
21 October 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a law firm take its fees dispute to the Supreme Court, ruling it was a private matter, not one of public importance.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesit, JJ.A) on an application by Kinyua Muyaa & Co Advocates, the unsuccessful party in the Court's judgment of 6 May 2022 in Civil Appeal No. 69 of 2020, for certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution, together with a stay of execution. The underlying judgment had dismissed the applicant's application to strike out the respondents' appeal, allowed the appeal, set aside an ELRC ruling upholding taxation of an advocate/client bill of costs at Kshs. 87,139,560.45, and remitted the bill for re-taxation by a different taxing officer. The applicant advanced several proposed issues of general public importance: the ELRC's jurisdiction to tax advocate/client bills; the scope of res judicata; whether an appeal may be heard without a notice or record of appeal; whether the final orders were consistent with the separate judgments; and alleged uncertainty on whether a party and party certificate of costs binds advocate/client taxation by a 50% uplift. Applying the Supreme Court's principles in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone and Town Council of Awendo v Nelson Oduor Onyango, the Court held that the gravamen was a private dispute over fees and taxation principles not transcending the parties' interests; that the notice-of-appeal and res judicata questions were settled; and that the remaining contentions were mere apprehensions of miscarriage of justice. It acknowledged merit in the claimed conflict between Premchand Raichand and Otieno, Ragot on the 50% uplift, but held the issue did not directly arise and should first be resolved by an expanded bench of the Court of Appeal. The application was dismissed with costs to the respondent, and stay of execution was refused.

Key legal issues

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01

Whether the intended appeal raises matters of general public importance

Holding

It does not; the gravamen is the quantum of advocate/client fees payable between the parties, a matter of private remuneration not transcending the case.

Reasoning

Applying the Steyn principles, the applicant bore the burden of showing that the issues transcend the litigation and bear on public interest. The Court found the dispute concerns only the quantum of advocate/client fees and taxation principles between the parties, and that the issues of jurisdiction, res judicata and interpretation of judgments raised are either settled or mere apprehensions of miscarriage of justice.

p. 5
02

Whether jurisdiction to hear appeals without a notice of appeal is uncertain

Holding

No uncertainty; a notice of appeal is an established prerequisite for the exercise of the Court's jurisdiction.

Reasoning

The Court held the applicant had not shown any uncertainty on this issue, citing Equity Bank v West Link Mbo and Nguruman Limited v Shompole Group Ranch as establishing that a notice of appeal is a prerequisite to the exercise of appellate jurisdiction.

p. 4
03

Whether the scope of res judicata requires Supreme Court clarification

Holding

No; the Supreme Court and this Court have already determined the scope of res judicata and there is no uncertainty.

Reasoning

The Court cited Supreme Court decisions including Kenya Commercial Bank v Muiri Coffee Estate and Florence Maritime Services, and Court of Appeal decisions such as Uhuru Highway Development v Central Bank of Kenya, to show the doctrine is settled, defeating the claim of uncertainty warranting certification.

p. 4
04

Whether there is uncertainty on whether a party and party certificate of costs binds advocate/client taxation by a 50% increase

Holding

There is merit in the contention of conflicting decisions, but the issue did not directly arise in this appeal and should first be resolved by an expanded bench of the Court of Appeal.

Reasoning

The Court acknowledged tension between Premchand Raichand (taxation is not a mathematical exercise) and the majority holding in Otieno, Ragot & Company Advocates v Kenya Airports Authority (taxing officer simply increases party and party costs by one half). It declined certification, holding the issue should be specifically framed before an expanded bench before escalation to the Supreme Court.

p. 5

Legal principles established

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  • A notice of appeal is a prerequisite for the exercise of jurisdiction by the Court of Appeal.
  • The test for certification of general public importance under Article 163(4)(b) is that the matter's impacts and consequences must be substantial, broad-based, transcend the parties' litigation interests and bear upon the public interest, with the burden on the intending appellant.
  • Mere apprehension of miscarriage of justice is not a proper basis for granting certification for an appeal to the Supreme Court.

Court orders

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  1. 1.The application for certification and leave to appeal to the Supreme Court is dismissed
  2. 2.The prayer for stay of execution is refused
  3. 3.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b) and (9)
  • Supreme Court ActSection 16(2)(a) & (b)
  • Appellate Jurisdiction ActSections 3(2) & 3A
  • Court of Appeal Rules, 2010Rule 40
  • Civil Procedure RulesOrder 41 Rule 6

Cases cited (11)

  • Hermanus Phillipus Steyn vs. Giovanni Gnecchi Ruscone
    [2013] eKLR

    Principles governing certification of matters of general public importance under Article 163(4)(b)

  • Town Council of Awendo vs. Nelson Oduor Onyango & 13 others
    [2015] eKLR

    Reiteration of the principles for determining general public importance

  • Equity Bank Limited vs. West Link Mbo Limited
    [2013] eKLR

    Notice of appeal as a prerequisite for exercise of appellate jurisdiction

  • Nguruman Limited vs Shompole Group Ranch
    Nairobi Civil Application No. NAI. 90 of 2013 [2014] eKLR

    Notice of appeal as a prerequisite for exercise of appellate jurisdiction

  • Kenya Commercial Bank vs. Muiri Coffee Estate Limited & another
    [2016] eKLR

    Scope of the doctrine of res judicata

  • Florence Maritime Services Ltd vs. Cabinet Secretary Transport, Infrastructure & 3 others
    [2021] eKLR

    Scope of the doctrine of res judicata

  • Uhuru Highway Development Ltd vs. Central Bank of Kenya
    [1999] eKLR

    Res judicata

  • William Koross vs. Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR

    Res judicata

  • Independent and Electoral Boundaries Commission vs Maina Kiai & 5 others
    [2017] eKLR

    Res judicata

  • Premchand Raichand Limited & another vs. Quarry Services of East Africa Limited & another
    [1972] E.A 162

    Taxation of costs is not a mathematical exercise but a matter of opinion based on experience

  • Otieno, Ragot & Company Advocates vs. Kenya Airports Authority
    [2021] eKLR

    Majority holding that where party and party costs are taxed, advocate/client costs are assessed by increasing party and party costs by one half

On appeal from
Court of Appeal (judgment sought to be appealed to the Supreme Court)
Civil Appeal No. 69 of 2020
Jurisdiction invoked
Article 163(4)(b) and (9) of the Constitution of Kenya, 2010; Section 16(2)(a) & (b) of the Supreme Court Act; Sections 3(2) & 3A of the Appellate Jurisdiction Act; Rule 40 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kinyua Muyaa & Co Advocates v Kenya Ports Authority Pension Scheme & 8 others", Case Analysis (2022). Civil Appeal (Application) 69 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1119/eng@2022-10-21

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