[2017] KEHC 3183 (KLR)
The court found that the respondent did not comply with the mandatory procedure under Rule 11 of the Advocates Remuneration Order, which requires an aggrieved party to seek reasons for the taxation and move the court by reference before appealing. The respondent filed a direct appeal from the taxing master's...
Source-derived case information.
- Citation
- [2017] KEHC 3183 (KLR)
- Parties
- Applicant: Kamau Kinga & Company Advocates; Respondent: Grace Wanjiku Kabiaru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 11 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Taxation of Costs, Advocate Client Disputes, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Kinga & Company Advocates
Applicant
Grace Wanjiku Kabiaru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution of the taxed costs pending appeal.
- 2 Whether the correct procedure under the Advocates Remuneration Order was followed in challenging the taxation.
Ratio Decidendi
The court found that the respondent did not comply with the mandatory procedure under Rule 11 of the Advocates Remuneration Order, which requires an aggrieved party to seek reasons for the taxation and move the court by reference before appealing. The respondent filed a direct appeal from the taxing master's decision without demonstrating compliance with the prescribed procedure. Consequently, the application for stay of execution was not available to the respondent, and the court dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 8th November 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO. 11 OF 2016
KAMAU KINGA & COMPANY ADVOCATES….……….APPLICANT
VERSUS
GRACE WANJIKU KABIARU…………………………RESPONDENT
RULING
1. This matter commenced as a miscellaneous application for assessment of costs as between an advocate and his client. The bill dated 3rd February 2016 was taxed in a ruling delivered by the taxing master on 22nd September 2016.
2. The respondent client then moved the court by way of a Motion dated 8th November 2016, filed herein on even date, seeking stay of execution of the taxed costs on grounds that she has filed an appeal against the taxation, which appeal is HCCA No. 97 of 2016. She argues that she was dissatisfied, and her appeal had merits.
3. The application is opposed. It is argued that the appeal is bad in law, for the applicant ought to have moved the High Court under Rule 11 of the Advocates Remuneration Order.
4. I have perused the record. I see that there is copy of a memorandum of appeal in HCCA No. 97 of 2016. It is dated 6th October 2016 and lodged in court on even date.
5. I need not assess its probability of success. I am only required to evaluate whether it was filed timeously and whether the appellant would suffer substantial loss. The ruling of the taxing master was delivered on 22nd September 2016, and the appeal filed on 6th October 2016; it cannot be said that there was unreasonable delay in moving the High Court on appeal. I trust execution would no doubt cost the appellant.
6. However, the law governing the matter is the Advocates Remuneration Order. According to it, an aggrieved party writes to the court asking for reasons for the taxation of certain items in a particular way. Once the reasons are given the aggrieved party then moves the court by reference according to Rule 11 of the Order. An appeal flows from the reference and not directly from the decision of the taxing master. In any event that appeal lies at the Court of Appeal with leave of court. It was not demonstrated that that was not done. There is therefore no proof that the procedure prescribed in the provisions of the Advocates Remuneration Order was complied with.
7. In the circumstances, I am persuaded that the orders sought are not available. I shall accordingly dismiss the application dated 8th November 2016, with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 29TH DAY OF SEPTEMBER, 2017.
W. MUSYOKA
JUDGE