Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedAppeal No E011 of 2022· [2023] KEELRC 2493 (KLR)

Wells Fargo Limited v Karanja & 12 others (Appeal E011 of 2022) [2023] KEELRC 2493 (KLR)

High Court of Kenya
3 October 2023
2,372 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Challenging a taxing officer's decision in Kenya requires a reference under paragraph 11 of the Advocates Remuneration Order, not an ordinary memorandum of appeal, or you lose.

What this practically means

#

Executive summary

#
The Appellant filed a memorandum of appeal dated 31st January 2022 seeking to vary or set aside a ruling of Deputy Registrar Hon. Noelle Kyany'a of 25th January 2022, delivered in her capacity as taxing officer under the Advocates Remuneration Order, in which she declined to order the Respondents to file a consolidated Bill of Costs. The Appellant justified the appeal route under Order 49 Rule 7(2) and (3) of the Civil Procedure Rules, relying on Francis Muriuki Muraguri v Milling Corporation and Kiplagat Kotut, arguing that taxation is part of execution and appeals from registrar's decisions lie to a judge in chambers within seven days. The Respondents opposed, submitting that paragraph 11 of the Advocates Remuneration Order prescribes a reference by chamber summons, not a memorandum of appeal, relying on Kamau Kinga, Matiri Mburu, Lubullelah and Machira, and invoking Salat v IEBC on the limits of Article 159. The court framed two issues: whether the appeal was properly filed and whether it was merited. Holding that the Advocates Remuneration Order is a complete code providing for references to a judge, and that rules of procedure are not technicalities excused by Article 159, the court found the Appellant misapprehended the law. The memorandum of appeal was declared a non-starter and dismissed with costs to the Respondents on 3rd October 2023.

Key legal issues

#
01

Whether an appeal lies to a Judge from a Deputy Registrar's ruling on taxation by memorandum of appeal under Order 49 Rule 7(2) and (3) Civil Procedure Rules

Holding

No - challenges to a taxing master's decisions lie only by way of reference under paragraph 11 of the Advocates Remuneration Order

Reasoning

The court held the Advocates Remuneration Order is a complete code for advocates' costs, providing a simple and expeditious reference procedure to a judge in chambers. The Appellant's memorandum of appeal misapprehended the law. The reference procedure is deemed the appeal; a memorandum of appeal directly against the taxing officer's decision is untenable.

p. 6
02

Whether Article 159(2)(d) of the Constitution excuses non-compliance with the procedure prescribed by the Advocates Remuneration Order

Holding

It does not; rules of procedure are not technicalities

Reasoning

Relying on Salat v IEBC and Microsoft Corporation v Mitsumi Computer Garage, the court held that Article 159 and the oxygen principles were never meant to overthrow rules of procedure. Rules facilitate fair, orderly and predictable administration of justice and courts must not aid parties who flout them.

p. 5

Legal principles established

#
  • A party aggrieved by a taxing master's decision must file a reference by chamber summons under paragraph 11 of the Advocates Remuneration Order, not a memorandum of appeal
  • Rules of procedure are not technicalities under Article 159(2)(d) and cannot be overridden in the name of substantive justice

Court orders

#
  1. 1.The memorandum of appeal dated 31st January 2022 is dismissed with costs to the Respondents

Authorities

#

Legislation

  • Civil Procedure RulesOrder 49 Rule 7(2) and (3)
  • Civil Procedure RulesOrder 22 rule 28; Order 75
  • Civil Procedure ActSection 75(1)(h); Section 80
  • Advocates Remuneration OrderParagraph 11
  • Advocates ActNot specified
  • Constitution of KenyaArticle 159; Article 159(2)(d)

Cases cited (8)

  • Francis Muriuki Muraguri t/a Lusoi Stores & 2 others v Milling Corporation of Kenya [2009] Limited
    [2018] eKLR
  • Kiplagat Kotut v Rose Jebor Kipngok; Standard Chartered Bank & another (Garnishees)
    [2020] eKLR
  • Kamau Kinga & Company Advocates v Grace Wanjiku Kabiaru
    [2017] eKLR
  • Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
  • Lubullelah & Associates Advocates v N. K Brothers
    [2015] eKLR
  • Machira & Co. Advocates v Arthur K. Magugu & another
    [2012] eKLR
  • Microsoft Corporation v Mitsumi Computer Garage Ltd & another
    [2001] KLR 470
On appeal from
Deputy Registrar (Taxing Officer), High Court
Jurisdiction invoked
Advocates Remuneration Order, paragraph 11 (jurisdiction contested; appeal improperly brought under Order 49 Rule 7(2) and (3) Civil Procedure Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wells Fargo Limited v Karanja & 12 others (Appeal E011 of 2022) [2023] KEELRC 2493 (KLR)", Case Analysis (2023). Appeal No E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2493/eng@2023-10-03

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