Onindo Onindo & Associates Advocates v Gatatha Farmers Co Limited & another [2022] KEELC 2039 (KLR)
The bottom line
#A Kenyan court refused permission to appeal because the advocate had already accepted the taxed legal fees without protest and couldn't show the appeal had real chances of success.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal should be granted against the ruling in the reference from taxation
Leave refused because the intended appeal showed no realistic chances of success, no prejudice was demonstrated, and no public interest or novel point was raised
Rule 11(3) of the Advocates (Remuneration) Order requires leave of the judge before an appeal to the Court of Appeal. The court exercises a judicious discretion and must be satisfied the intended appeal has realistic, not fanciful, prospects. The applicant also accepted the taxed sum unconditionally in 2018, estopping him from reopening the issue, and showed no prejudice or sufficient cause such as public interest or a novel point.
Effect of the applicant's unconditional receipt of the taxed costs of Kshs. 774,800 in November 2018
By accepting payment unconditionally without protest the applicant represented that matters were settled and is estopped from resiling; granting leave would be an academic exercise
The court found the payment was made even before the application for extension of time was filed and was never controverted. Acceptance of the decretal sum discharged the respondent's obligation. Reopening the taxation through an appeal would prejudice respondents who had moved on, and good faith was lacking. Granting leave would be an exercise in futility and a waste of court time.
Whether the Notice of Appeal lodged on 6/8/2019 without leave affected the determination
The notice was lodged in contravention of Rule 11(3), but the court noted its existence was a matter for the Court of Appeal and did not affect its determination
The court observed that the notice of appeal was lodged before leave was granted, contrary to the rule. However, once lodged, its competence fell to the Court of Appeal to decide. The judge declined to speculate on the consequences of a second notice of appeal and determined the application on its merits.
Legal principles established
#- Leave to appeal against a judge's decision on a reference from taxation is required under Rule 11(3) of the Advocates (Remuneration) Order and is granted only where the applicant shows an arguable case with realistic chances of success, no undue delay, and sufficient cause such as public interest or a novel point
- Where a party by conduct accepts payment of taxed costs unconditionally, representing that matters are settled, that party is estopped from resiling
Court orders
#- 1.The Application dated 27/5/2021 is dismissed
- 2.Costs of the Application to the respondents
- Jurisdiction invoked
- Sections 63(e), 1B and 3A of the Civil Procedure Act; Order 50 and 51 of the Civil Procedure Rules; Rule 11 of the Advocates Remuneration Order; the Constitution of Kenya and all enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- J.M. Njenga & Co. Advocates LLP v Kimuri Housing Company Ltd (Environment and Land Miscellaneous Application E129 of 2023) [2026] KEELC 4391 (KLR)[2026] KEELC 4391 (KLR)14 Jul 2026applied
- Prof Tom Ojienda & Associates v County Government of Nairobi (Environment and Land Miscellaneous Case E115 of 2023) [2026] KEELC 1133 (KLR)[2026] KEELC 1133 (KLR)19 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Onindo Onindo & Associates Advocates v Gatatha Farmers Co Limited & another [2022] KEELC 2039 (KLR)", Case Analysis (2022). ELC Misc. Application (Kitale) - Notice of Motion dated 27th May 2021, arising from consolidated Misc. Applications No. 11 and 12 of 2017 and Kitale ELC No. 57 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2039/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.