Macharia v Maina & Maina Advocates

on time, but that the High Court delayed issuing the typed proceedings; that he will be prejudiced in his intended appeal if execution of the bill of costs proceeds as per the certicate of taxation; and that the orders sought will not prejudice the respondent if granted. 4. Edward led written submissions in support of his motion in which he reiterated what he had stated in his adavit. He argued that the respondent will not suer any prejudice as he will participate in the appeal, and that there has been no inordinate delay in ling this application for reasons that he had led an appeal against the High Court decision and served the same upon the respondent, and that the respondent’s move to tax the bill of cost was calculated to injure him. He prays that this application be allowed. 5. The respondent led written submissions by which the Court was urged to dismiss the motion on the ground that the applicant had not met the conditions set out under Order 42 Rule 6(2) of the Civil Procedure Rules as no security has been furnished, and that the applicant’s motion was an abuse of the Court Process as the appeal upon which it was anchored was incompetent and not arguable at all. 6. We have considered the motion before us and the contending arguments. Edward’s motion is said to be brought under Rules 5(2) (b), 42 and 47 of the Court of Appeal Rules and the inherent jurisdiction of the Court. Rule 42 provides for the format for the motion, whilst Rule 47 provides for urgent applications. Edwards’s motion is therefore substantively brought under Rule 5(2) (b) of the Court of Appeal Rules, which provides for stay of execution. Under that Rule, such a motion must be anchored on an appeal which is initiated by ling a notice of appeal to this Court. Edward has exhibited notices of appeal against the two rulings of the Deputy Registrar of the High Court in a taxation matter. 7. Under Rule 11 of the Advocates (Remuneration) Order, the procedure for appealing against a ruling of a Deputy Registrar as a taxing ocer in a taxation matter is stated as follows: “ (1) Should any party object to the decision of the taxing ocer, he may within fourteen days after the decision give notice in writing to the taxing ocer of the items of taxation to which he objects. (2) The taxing ocer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. (3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. (4) The High Court shall have power in its discretion by order to enlarge the time xed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” 8. A reading of Rule11 of the Advocates (Remuneration) Order, shows that the rst port of call open to Edward if dissatised with the order of the Deputy Registrar, was to le a reference to a Judge in chambers against the decision of the Deputy Registrar and, thereafter, he could only le an appeal to this Court against the decision of the Judge with leave from the Judge. In this case, the intended appeals are incompetent because the right procedure has not been followed and nor are they in the right forum. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/794/eng@2022-06-24 2

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This is because the appeal is against the decision of the Deputy Registrar and not against the decision of a Judge as Edward has not led a reference to a Judge in chambers. Secondly, no leave has been given by a Judge for such an appeal to be led before this Court. 9. Moreover, even assuming that the intended appeal was properly before us, Edward seeks to stay execution of the certicate of taxation for Bill of Costs which is for Kshs. 232,690, the intended appeal could not be rendered nugatory by the mere execution of the certicate of taxation, as Edward has not demonstrated that the respondent, which is a rm of advocates, will not be able to repay this money. For these reasons we nd no merit in the applicant’s motion and the same is hereby dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE, 2022. HANNAH OKWENGU .............................. JUDGE OF APPEAL A. MBOGHOLI MSAGHA .............................. JUDGE OF APPEAL DR. K. I. LAIBUTA .............................. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/794/eng@2022-06-24 3

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