Journey t/a Bitala & Kakinga Advocates v Mwangangi t/a Mwangangi & Co Advocates (Miscellaneous Application E001 of 2023) [2024] KEELC 1548 (KLR)

The court held that granting stay of proceedings pending a reference is a discretionary exercise requiring sufficient cause. Since the Originating Summons sought to enforce a professional undertaking whose excess refundable amount could only be computed from the impugned taxation ruling, hearing the suit first would render the reference nugatory and offend the applicant's right of appeal. Staying proceedings pending the reference served substantive justice, efficiency and proportionate use of judicial time.

The court found from the chronology and the terms of the professional undertaking that the excess of Kshs. 306,812.13 could only be discerned after taking into account the taxed amount, and that the respondent's own pleadings extensively referenced the taxations. The contention that the suit, brought under Order 52 and not Order 22, had nothing to do with the taxation was described as misguided and amounting to splitting of hairs.

The court held that a taxation decision is a judicial decision appealable under paragraph 11 of the Advocates Remuneration Order, and that the right to appeal is constitutional and cannot be impliedly waived. The professional undertaking contained no express waiver of the right to challenge the taxation, so the respondent's argument failed.

While accepting the principle that a party who induces another to act to their detriment cannot renege, the court held that the application before it was for stay of proceedings, not enforcement of the undertaking. Whether the applicant was attempting to wriggle out of her professional obligation was a question to be determined at the hearing of the Originating Summons, not on the stay application.