Museum View Office Suites Limited v Muri Mwaniki & Wamiti Advoates

3. The applicant further states that he should not be punished because of his advocate’s mistake; that its intended appeal is not only arguable but has overwhelming chances of success; and that unless this application is granted, the respondent will proceed to commence execution proceedings for recovery of Kshs. 4,386,052/- and the applicant will be unable to exercise its right of appeal. 4. The application is opposed. The respondent filed a replying affidavit that was sworn by Martin G. Mwaniki, an advocate practicing in the respondent’s firm of advocates. The respondent states, inter alia, that this Court lacks jurisdiction to hear the application because it is incompetent for reasons that: (a) there is no automatic right of appeal to this Court against a decision of a judge upon an objection by way of a reference from a decision of a taxing officer because an application for leave ought to be sought in the High Court as stipulated in paragraph 11(3) of the Advocates (Remuneration) Order 2009 and Rule 41(1) of the Court of Appeal Rules, 2022; (b) the applicant has not applied for leave at all either by the High Court or this Court to appeal against the ruling of 25th September 2024, which leave, in any event, must be obtained within 14 days of the ruling; (c) the applicant did not seek extension of time within which to apply for leave to appeal against the said ruling. 5. The respondent further states that subsequent to the delivery of the ruling on 25th September 2024, the applicant did not serve the respondent with the notice of appeal or a letter bespeaking the proceedings of this Court and, therefore, pursuant to rule 84 of this Court’s Rules, the applicant cannot seek extension of time. 6. The respondent contends that the reasons advanced by the applicant for delay in filing a notice of appeal are not sufficient, and urges this Court to dismiss the application. 7. The parties filed submissions that I have considered, and I need not rehash the contents thereof as they largely reiterate and expound on the issues raised in their respective affidavits. 8. Paragraph 11(3) of The Advocates (Remuneration) Order 2009 states as follows: “ 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.” 9. Rule 41(1) of this Court’s Rules states as follows: “ In a civil matter— a. b. where an appeal lies with the leave of the superior court, application for such leave may be made— i. informally at the time when the decision against which it is desired to appeal is given; or ii. by motion or chamber summons according to the practice of the superior court, within fourteen days of such decision; where an appeal lies with the leave of the Court, application for such leave shall be made— i. in the manner laid down in rules 44 and 45 within fourteen days after the decision against which it is desired to appeal; or https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1962/eng@2025-11-21 2

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ii. where application for leave to appeal has been made to the superior court and refused, within fourteen days after such refusal.” 10. There is no indication that the applicant made any effort to seek leave to appeal from the trial court judge. It is therefore evident that the applicant is in clear violation of the provisions of paragraph 11(3) of the Advocates (Remuneration) Order 2009, and therefore this Court has no jurisdiction to consider this application. 11. This Court has previously held that a party who does not seek leave to appeal against a decision of a judge on a reference in taxation proceedings does not have standing before this Court. See Kenya County Government Workers Union v Mbuvi t/a Katunga Mbuvi & Co Advocates (Civil Application E059 of 2023) [2023] KECA 525 (KLR) (12 May 2023) (Ruling). 12. Being deprived of jurisdiction for reasons as stated, I must down my tools at this stage. Consequently, I hereby strike out this application with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF NOVEMBER 2025. D. K. MUSINGA, (PRESIDENT) ………………………………… 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/2025/1962/eng@2025-11-21 3

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