Sammy Mutua Makove & 1 other v Statutory Manager United Insurance Company Limited & 10 others
The bottom line
#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
#Executive summary
#Key legal issues
#Remit of a full bench on a reference from a single judge's ruling
A reference is not an appeal; interference is only on established grounds of review of discretion.
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.
Entitlement of an in-person party to instruction fees
Only an advocate may claim instruction fees; an in-person party is limited to reasonable expenses under rule 19 of the Third Schedule.
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.
Validity of a bill of costs prepared and filed by a person not entitled to practise
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.
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
#- 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
#- 1.The reference by the 1st respondent is allowed
- 2.The decision by the taxing master is set aside in its entirety
- 3.The 10th respondent's cross-reference contesting the sum awarded for instruction fees as too low is dismissed
- 4.The entire bill of costs filed by the 10th respondent is struck out
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.