[2018] KECA 577 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E. M. GITHINJI, HANNAH OKWENGU & J. MOHAMMED, JJ.A.)

CIVIL APPEAL NO. 15 OF 2016

BETWEEN

ASMAN OMAR WAFULA a.k.a.

WAFULA A.O. MUTACHO...........................APPELLANT

AND

PROF. NIXON SIFUNA

Practising under the name and style of

SIFUNA & SIFUNA ADVOCATES...........RESPONDENT

(An Appeal from the judgment of the High Court of Kenya

at Kitale, (J.R. Karanja, J.) dated 26th May, 2015

in

H.C. MISC APPLICATION NO. 26 OF 2014

(Leave to Appeal was granted

by Hon. S. Githinji, J. on 27th October, 2015)

*******************

JUDGMENT OF THE COURT

[1] This is an appeal from an “Order” of the High Court (J.R. Karanja, J.)whereby the High Court ordered that the advocate and client bill of costs dated 19th January, 2014, be taxed by the Deputy Registrar of the Court.

[2] The appellant was a candidate in the March 4th, 2013 General Elections for the seat of Member of National Assembly for Saboti Constituency in Trans-Nzoia County. He lost the election to David Wafula Wekesa. The appellant being dissatisfied with declared results instructed the respondent to file an election petition challenging the election of his opponent. The respondent accepted the instructions and on 8th April, 2013 filed Election Petition No. 7of2013at the High Court at Kitale against David Wafula Wekesa, Returning Officer and the Independent Electoral and Boundaries Commission. When the petition came for pre-trial conference on 27th June, 2013, the respondent was served with a notice of change of advocate and henceforth ceased to act for the appellant.

[3]On 20th January, 2014, the respondent filed an Advocate-client bill of costs dated 19th January, 2014 for a total sum of Shs. 4,192,425/= including Shs.3,000,000/= as instruction fees. At the same time, the respondent filed a Notice of Motion dated 20th January, 2014 in the Election Petition for an order that the bill of costs dated 19th January, 2014 be taxed as drawn. The notice of motion was supported by the affidavit of the respondent. The appellant filed a replying affidavit stating, inter alia, that upon taking of instructions, the advocates fees was negotiated and fixed at Shs. 300,000/=, excluding disbursements; that the respondent caused him to sign an agreement which the respondent kept; that he paid 50% deposit of Shs.150,000/= leaving a balance of Shs.150,000/=. The appellant later filed a supplementary affidavit annexing a report dated 5th February, 2015 from Peter Kiplagat– a Computer & Cellular Forensic Examiner from the Directorate of Criminal Investigations and a copy of a phone sms – Text message dated 21st June, 2013 apparently extracted from the appellant’s phone in which the respondent alleged to have told the appellant to “read the fee agreement you signed”.

[4] Thereafter, the appellant filed a notice of preliminary objection to the application and grounds of objection to the application. The objection was heard by P.V. Wandera, a Deputy Registrar who ruled that the bill of costs should have been filed as a miscellaneous cause and directed the respondent to comply with the rules and also file a supplementary affidavit to respond to the averment that there was an agreement on fees. The respondent duly complied and filed a Miscellaneous Cause No. 26of2014 and a further affidavit. By the further affidavit sworn on 16th February, 2015, the respondent impugned the report of Peter Kiplangat on the grounds that the said Peter Kiplangat did not swear an affidavit annexing his letter of appointment and qualifications; and that the document was not authentic and was inadmissible in evidence.

[5] The Deputy Registrar referred the application to a Judge for hearing. The application was heard by the learned Judge by way of written submissions. The record shows that the learned Judge delivered a ruling on the application on 26th May, 2015.

[6] The memorandum of appeal contains six grounds of appeal including the grounds that:

(i) the Judge erred in law and fact when he ordered that the respondent’s advocate and client bill of costs be taxed;

(ii) the Judge erred in law and fact when he held that the agreement fixing the advocate and client bill of costs was not placed before him;

(iii) the Judge erred in law when he rejected the electronic evidence which contained the respondent’s admission of the existence of an agreement in writing and fixing the advocates legal costs;

(iv) the Judge erred in law when he failed to appreciate that the appellant had by his first affidavit and opposition to the application for taxation raised the issue of the existence of an agreement which assertion was never rebutted by the respondent.

The appellant’s counsel filed comprehensive written submissions and made oral submissions. The respondent did not file written submissions. He claimed that he was served with the appellant’s written submissions on the morning of the hearing of the appeal. However, the respondent made extensive oral submissions opposing the appeal. He contended that the appellant had intentionally failed to include the ruling of J.R. Karanja, J. in the record of appeal to deprive the court of the reasoning of the learned Judge which is unpalatable to the appellant and that the learned Judge made a finding that the appellant had not demonstrated that there was an agreement. Mr. Kraido, learned counsel for the appellant conceded that the ruling was omitted from the record but contended that the gist of the ruling – that there was no proof that there was an agreement has been stated by the respondent. Counsel further contended that the learned Judge did not make a finding on the electronic evidence.

[7] We have considered the appeal. Rule 87(1) (g) of the Court of Appeal Rules stipulates that the record of appeal shall contain the judgment or order appealed from. Further, Rule 86(1) provides that a memorandum of appeal should, amongst other things, set forth

“the grounds of objection to the decision appealed against; specifying the points which are alleged to have been wrongly decided.”

It is correct that the ruling appealed against is not included in the record of appeal. The appellant only included the extracted order from the ruling which indicates that a ruling was delivered on 26th May, 2015 and that the learned Judge considered the affidavits, further affidavit, annextures and written submissions filed by both parties. The order does not contain the findings of the learned Judge on the several issues raised. It only contains the bare order that the advocate-client bill of costs be taxed by the Deputy Registrar.

[8]The jurisdiction of this Court as an appellant court is to correct the errors of law or fact, if any, committed by the High Court and courts of equal status. The appellant has to show that the impugned decision should be reversed on account of errors of law or fact or both. The substantive decision of the court appealed from is the Juridical basis upon which an appellate court can make a judicial determination of whether or not the points raised in the grounds of appeal were wrongly decided.

In the instant appeal, the omission by the appellant to include the ruling of the court in the record of appeal has deprived the Court of the means to determine on the merits whether or not the errors alleged in the grounds of appeal were committed by the trial Judge. It follows that in the absence of the ruling of the learned Judge, the appeal is incompetent and should therefore be struck out.

[9]Accordingly, the appeal being incompetent is struck out with costs to the respondent.

Dated and Delivered at Eldoret this 17th day of May, 2018.

E. M. GITHINJI

.........................................

JUDGE OF APPEAL

HANNAH OKWENGU

.......................................

JUDGE OF APPEAL

J. MOHAMMED

.....................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR