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Court of AppealPartially AllowedReference from the ruling of J. Mohammed, JA dated 13th August 2021· [2024] KECA 846 (KLR)

Sammy Mutua Makove & 1 other v Statutory Manager United Insurance Company Limited & 10 others

Court of Appeal of Kenya
12 July 2024
2,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a person who is not a practising advocate cannot claim millions in legal fees for representing himself.

What this practically means

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Executive summary

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This is a full-bench reference from the ruling of J. Mohammed, JA dated 13th August 2021, who had dismissed a reference and cross-reference against a Deputy Registrar's taxation of a bill of costs at Kshs 4,010,930 in favour of the 10th respondent, Charles Lutta Kasamani. The bill claimed instruction fees of Kshs 59,992,500 for opposing an interlocutory appeal in a winding-up matter concerning United Insurance Company Ltd. The full bench first restated the limited remit on a reference: a reference is not an appeal, and interference is warranted only where the single judge considered an irrelevant factor, ignored a relevant one, misapprehended law or fact, or reached a plainly wrong decision. The court found that both the Deputy Registrar and the single judge ignored decisive factors: the 10th respondent was struck off the Roll of Advocates when the appeal was filed and again when it was struck out in 2018, so he appeared in person as a creditor, not as an advocate. Only an advocate may claim instruction fees, since a party in person cannot instruct himself; rule 19 of the Third Schedule confines such a party to reasonable expenses. His filing of the bill while unqualified, using his son's practising certificate details, was a criminal offence under section 9 of the Advocates Act, and documents prepared by unqualified persons are void. The reference was allowed, the taxation set aside in its entirety, the bill struck out, the 10th respondent awarded only Kshs 40,000 as reasonable expenses, the cross-reference dismissed, and each party ordered to bear its own costs.

Key legal issues

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01

Remit of a full bench on a reference from a single judge's ruling

Holding

A reference is not an appeal; interference is only on established grounds of review of discretion.

Reasoning

The court adopted the principles in Kimathi v Muriuki: the full bench may interfere only where the single judge took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended a point of law or fact, or where the decision is plainly wrong. The court noted the principles apply even though the single judge was not deciding a rule 4 application.

p. 5
02

Entitlement of an in-person party to instruction fees

Holding

Only an advocate may claim instruction fees; an in-person party is limited to reasonable expenses under rule 19 of the Third Schedule.

Reasoning

Rule 2(1) of the Third Schedule permits only the advocate for the party awarded costs to lodge a bill; rule 19 empowers the taxing officer to allow only reasonable expenses of an in-person party. The Deputy Registrar erred in holding that the rules draw no distinction between represented and in-person parties for party-and-party costs, and the single judge failed to correct this misdirection.

p. 5
03

Validity of a bill of costs prepared and filed by a person not entitled to practise

Holding

The entire bill was void and was struck out; the 10th respondent was struck off the Roll when the appeal was filed and when the bill was drawn, making his holding out a criminal offence.

Reasoning

The 10th respondent was struck off with effect from 17th September 2007, reinstated by judicial review order in June 2010, then struck off again on 19th September 2016. He was unauthorised to practise in 2018 when the appeal was struck out and when he filed the bill using his son's practising certificate details, contrary to section 9 of the Advocates Act. Documents prepared by unqualified persons are void for all purposes.

Legal principles established

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  • A reference to a full bench is not an appeal; the full bench may interfere with a single judge's exercise of discretion only where an irrelevant factor was considered, a relevant factor ignored, a point of law or fact misapprehended, or the decision is plainly wrong.
  • Only the advocate for the party awarded costs may lodge a bill of costs; a party who appeared in person may recover only reasonable expenses, not instruction fees.
  • Documents prepared by unqualified persons, including struck-off advocates, are void for all purposes; holding oneself out as an advocate while struck off is a criminal offence under section 9 of the Advocates Act.

Court orders

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  1. 1.The reference by the 1st respondent is allowed
  2. 2.The decision by the taxing master is set aside in its entirety
  3. 3.The 10th respondent's cross-reference contesting the sum awarded for instruction fees as too low is dismissed
  4. 4.The entire bill of costs filed by the 10th respondent is struck out
  5. 5.The 10th respondent, as a party who appeared in person, is awarded reasonable expenses assessed at Kshs 40,000 on account of court attendances and actual disbursements
  6. 6.Each party shall bear its own costs of this reference
On appeal from
Court of Appeal of Kenya (ruling of a single judge, J. Mohammed, JA)
Appeal from Winding-Up Cause No. 22 of 2006 (High Court), taxation before L. Ogombe, Deputy Registrar
Jurisdiction invoked
Reference to a full bench from the ruling of a single judge under the Court of Appeal Rules

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, "Sammy Mutua Makove & 1 other v Statutory Manager United Insurance Company Limited & 10 others", Case Analysis (2024). Reference from the ruling of J. Mohammed, JA dated 13th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/846/eng@2024-07-12

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