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ELCAllowedEnvironment and Land Miscellaneous Application E005 of 2021· [2023] KEELC 16450 (KLR)

Mwangangi & Co Advocates v Kakenyi

Environment and Land Court
20 March 2023
COChristine Ochieng
762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that appealing a decision on advocate's fees requires the judge's permission first, and granted that permission here.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a Chamber Summons application dated August 4, 2022, brought by Mwangangi & Co Advocates under rule 11(3) of the Advocates (Remuneration) Order and sections 1A, 1B and 3A of the Civil Procedure Act. The applicant sought leave to file an appeal to the Court of Appeal against a ruling of the court delivered on July 25, 2022, which had dealt with an application to correct an alleged error in the calculation of fees on Item No. 1 of a Bill of Costs. The applicant, who had rendered legal services in 2018 for the registration of land in the respondent's name, contended that an appeal from a ruling on a reference to the Taxing Master's decision lies only with leave, that it had annexed a draft Memorandum of Appeal, and that it would suffer continuing prejudice if leave were refused. The respondent filed neither a replying affidavit nor submissions. The court framed a single issue: whether the applicant was entitled to leave to appeal. Relying on rule 11(3) and the Court of Appeal's decision in Najib Balala v David M Githere, and noting the absence of delay and opposition, the court exercised its discretion in the applicant's favour, granted leave to appeal against the July 25, 2022 ruling, and made no order as to costs.

Key legal issues

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01

Whether leave to appeal against a ruling on a reference to a Taxing Master's decision should be granted

Holding

Leave was granted; the application was brought without undue delay, was unopposed, and a draft Memorandum of Appeal was annexed.

Reasoning

Rule 11(3) of the Advocates (Remuneration) Order permits an appeal to the Court of Appeal from a judge's determination of a reference only with leave of the Judge. Leave is discretionary. The court found no delay, no opposition from the respondent, and a draft Memorandum of Appeal setting out grounds, and associated itself with the Najib Balala decision before exercising its discretion in the applicant's favour.

p. 2

Legal principles established

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  • Leave of the Judge is a prerequisite for an appeal to the Court of Appeal against a decision on a reference under rule 11(3) of the Advocates (Remuneration) Order.

Court orders

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  1. 1.Leave granted to the Applicant to file an Appeal to the Court of Appeal against the Ruling delivered at Machakos on July 25, 2022
  2. 2.No order as to costs

Authorities

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Legislation

  • Advocates (Remuneration) Orderrule 11(3)
  • Civil Procedure Actsections 1A, 1B and 3A

Cases cited (1)

  • Najib Balala & 13 Others V David M Githere & 9 others
    (2005) eKLR

    That an appeal from a determination of an objection under Rule 11(3) lies only with leave of the Judge.

Jurisdiction invoked
Rule 11(3) of the Advocates (Remuneration) Order and sections 1A, 1B and 3A of the Civil Procedure Act

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, "Mwangangi & Co Advocates v Kakenyi", Case Analysis (2023). Environment and Land Miscellaneous Application E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16450/eng@2023-03-20

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