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Court of AppealPartially Allowed· [2023] KECA 303 (KLR)

Kenya Airports Authority v Otieno, Ragot & Company Advocates (Civil Application E001 of 2021) [2023] KECA 303 (KLR)

Court of Appeal
17 March 2023
2,801 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed KAA to take its fee dispute to the Supreme Court but refused to pause the KShs 196 million fee ruling while doing so.

What this practically means

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Executive summary

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Kenya Airports Authority applied to the Court of Appeal at Kisumu for a stay of execution of that court's majority judgment of 19th May 2021, which directed that the respondent law firm's instruction fees be taxed at Kshs.196,044,750.50, and for certification that its intended appeal to the Supreme Court raised matters of general public importance under Article 163(4)(b) of the Constitution. The applicant argued that the proper interpretation of Schedule VI Parts A and B of the Advocates Remuneration Order, 2014 - in particular whether the phrase 'fees prescribed in A above increased by one-half' fetters the taxing master's discretion - impacts the public's right of access to justice under Article 48 and the prudent use of public resources under Article 201(d). The respondent opposed, contending the dispute was purely between the parties, that new constitutional issues were being raised for the first time, and that the Court of Appeal has no jurisdiction to stay its own judgments. Applying the principles in Hermanus Phillipus Steyn, the court found that the divergent majority and minority positions in the impugned judgment - one holding that no further discretion remains for the taxing officer once party and party instruction fees are ascertained, the other that discretion applies where the subject value is unascertainable - created uncertainty in the law meriting the Supreme Court's resolution. Certification and leave to appeal were therefore granted, with a direction to file a notice of appeal within 14 days under rule 16 of the Supreme Court Rules, 2020. The stay of execution prayer was refused, the court holding that its stay jurisdiction extends only to pending appeals to itself, not from its own orders. Costs of the application were ordered to abide the outcome of the intended appeal. The court also apologised to the parties for the delay in delivering the ruling.

Key legal issues

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01

Whether the interpretation of Schedule VI Parts A and B of the Advocates Remuneration Order, 2014 and the taxing master's discretion in Advocate-Client bills raises a matter of general public importance

Holding

Certification granted because the majority and minority decisions of the Court of Appeal took divergent positions on the taxing master's discretion, creating uncertainty requiring the Supreme Court's authoritative resolution

Reasoning

The majority held that once instruction fees in the party and party bill are ascertained, they are increased by one-half to arrive at the Advocate-Client instruction fees, with no further exercise of discretion by the taxing officer. The minority judge held that where the value of the subject matter cannot be ascertained from the pleadings and the suit is struck out at a preliminary stage, the taxing officer should exercise discretion to determine just instruction fees taking all relevant considerations into account. These divergent views call for the Supreme Court's final and authoritative resolution, satisfying the certification principles in Hermanus Phillipus Steyn.

p. 5
02

Whether the Court of Appeal can stay its own judgment pending an intended appeal to the Supreme Court

Holding

It cannot; the stay jurisdiction of the Court of Appeal is limited to intervention pending appeals to itself

Reasoning

Counsel for the respondent argued the Court of Appeal has no jurisdiction to stay its own judgments, and the court agreed, declining to arrogate to itself a non-existent jurisdiction. The stay prayer was accordingly refused while certification was granted.

p. 5

Legal principles established

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  • An appeal from the Court of Appeal to the Supreme Court lies only as of right in cases involving interpretation or application of the Constitution, or in any other case certified to involve a matter of general public importance under Article 163(4)
  • A matter of general public importance must have substantial, broad-based impacts and consequences transcending the litigation interests of the parties and bearing upon the public interest
  • The Court of Appeal has no jurisdiction to stay execution of its own judgments pending an intended appeal to the Supreme Court
  • Divergent majority and minority decisions of the Court of Appeal on a point of law constitute a state of uncertainty in the law meriting the Supreme Court's certification and resolution

Court orders

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  1. 1.Certified that the intended appeal raises questions of general public importance and granted leave to appeal to the Supreme Court
  2. 2.Directed the applicant to file a notice of appeal within 14 days of the date of the ruling and serve it as provided under rule 16 of the Supreme Court Rules, 2020
  3. 3.Ordered that the costs of the application shall abide the outcome of the intended appeal
  4. 4.Refused the prayer for stay of execution of the judgment of 19th May 2021

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4), Article 163(4)(b), Article 48, Article 201(d)
  • Advocates Remuneration Order, 2014Schedule VI Part A and B
  • Supreme Court Rules, 2020Rule 16

Cases cited (8)

  • Moronge & Company Advocates v Kenya Airports Authority
    [2014] eKLR
  • Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and Allied Workers' Union (kefhau) Represented By Its Promoters David Benedict Omulama & 9 others
    [2018] eKLR
  • Telkom Kenya Limited v John Ochanda & 996 others
    [2015] eKLR
  • Hermanus Phillipus Steyn v. Giovanni Gnecchiruscone
    [2013] eKLR
  • Town Council of Awendo v Nelson Oduor Onyango & 13 others as Cited In Mitu - Bell Welfare Society v Kenya Airport Authority Ltd & 2 others
    [2015] eKLR / [2018] eKLR
  • Malcolm Bell v. Daniel Toroitich Arap Moi & another
    [2013] eKLR
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2015] eKLR
  • Langata Development Co. Limited v Mary Wanjiru Dames
    [2019] eKLR
Jurisdiction invoked
Article 163(4)(b) of the Constitution - certification that the intended appeal involves a matter of general public importance

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, "Kenya Airports Authority v Otieno, Ragot & Company Advocates (Civil Application E001 of 2021) [2023] KECA 303 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/303/eng@2023-03-17

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