https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1044

Machakos County Government v Kapiti Plains Estate Ltd & another (Civil Appeal 427 of 2019) [2026] KECA 1044 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1044 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 427 of 2019 SG Kairu, J Mohammed & WK Korir, JJA May 29, 2026 Between Machakos County Government Appellant and Kapiti Plains Estate Limited 1st Respondent Vascoline Katanu Mwanzia (Suing as the Legal Representative of the Estate of Boniface Mutinda Kabaka - Deceased) t/a Kabaka & Associates Advocates 2nd Respondent (Being an appeal from the ruling of the Environment and Land Court of Kenya at Machakos (O. A. Angote, J.) dated 21st June, 2019 in ELC Case No. 40 of 2015 Environment & Land Case 40 of 2015 ) Judgment Background 1.Machakos County (the appellant herein) being dissatisfied with the ruling of the Environment and Land Court (ELC) (O. A. Angote, J.) delivered on 21st June 2019 in ELC Case No. 40 of 2015, lodged the present appeal challenging the learned Judge’s refusal to grant leave to appeal to this Court. The impugned ruling dismissed the appellant’s Motion dated 27th May, 2019. Kapiti Plains Estate Limited and Vascoline Katanu Mwanzia (suing as the legal representative of the Estate of Boniface Mutinda Kabaka (Deceased) T/A Kabaka & Associates Advocates are the 1st and 2nd respondents respectively. 2.The dispute giving rise to the present appeal originated from an Advocate- Client Bill of Costs filed by the 2nd respondent against the appellant in the sum of Kshs.366,670,971.70. 3.Prior to the taxation of the said Bill by the Taxing Master, the appellant moved the ELC by way of a notice of motion dated 17th April 2018 seeking, inter alia, orders that the Directorate of Criminal Investigations do investigate and file a report concerning the execution of certain documents filed in Machakos High Court Civil Suit No. 40 of 2015. 4.The appellant further sought declarations that the Plaint and accompanying pleadings purportedly signed by Philip Nzyuko Musya (Philip) were forgeries; that the verifying affidavit and supporting affidavits filed in the suit had not been executed by the persons whose signatures appeared thereon; that the 2nd respondent lacked instructions and/or a lawful retainer to institute the suit on behalf of the appellant; and that the 2nd respondent acted in conflict of interest. 5.The application was supported by affidavits sworn by the appellant’s Chief Officer for Lands and Urban Development and by advocate Philip, who averred that he neither signed nor authorized the execution of the pleadings filed in Machakos HCCC No. 40 of 2015. 6.In opposition to the application, the 2nd respondent maintained that he had been duly instructed by the appellant to institute proceedings for the recovery of outstanding land rates. 7.Upon considering the Motion, the ELC, in its ruling dated 5th April 2019, found the application devoid of merit and dismissed it with costs. The ELC further held that the 2nd respondent was entitled to legal fees arising from the proceedings instituted on behalf of the appellant. 8.Aggrieved by that decision, the appellant lodged a Notice of Appeal on 10th April 2019 and subsequently filed a Notice of Motion dated 27th May 2019 before the ELC seeking leave to appeal to this Court against the ruling delivered on 5th April, 2019 and the consequential orders dated 22nd May 2019. The appellant also sought an order for stay of further proceedings in ELC Case No. 40 of 2015 and in Machakos Misc. Application No. 387 of 2017 pending the hearing and determination of the intended appeal. It is the determination of that Motion delivered on 21st June 2019 that precipitated the instant appeal. 9.The Motion dated 27th May, 2019 was premised on the grounds that the appellant intended to challenge the ELC ruling of 5th April 2019, from which an appeal lay only with leave of the court, and that a notice of appeal had already been filed. 10.The respondents opposed the application on the basis that it had been filed outside the fourteen-day period prescribed under Order 43 Rule 3 of the Civil Procedure Rules and was therefore statute-barred. 11.The respondents further contended that the ELC lacked jurisdiction to stay proceedings in Machakos Misc. Application No. 387 of 2017, arguing that the notice of appeal had been filed prematurely and without prior leave. 12.In determining the application for leave to appeal, the ELC observed that the ruling of 5th April 2019 had been delivered in the presence of counsel for both parties and that although the appellant had sought stay of execution, it had failed to apply contemporaneously for leave to appeal. The ELC acknowledged the provisions of Rule 75(4) of the Court of Appeal Rules, which dispense with the requirement for prior leave before lodging a notice of appeal where leave is necessary. The ELC held that the Rule had to be read together with Order 43 Rule 3 of the Civil Procedure Rules, which requires leave to be sought within fourteen (14) days of the impugned order. 13.The ELC held in part as follows:“… having filed the application outside the requisite period of fourteen (14) days and having not sought for order to extend time within which to file the application for leave to appeal, the provision of Rule 75(4) of the Court of Appeal cannot come to the plaintiff’s aid.” 14.Consequently, the application was dismissed. Aggrieved by the said decision, the appellant lodged the present appeal. In its Memorandum of Appeal dated 30th August 2019, the appellant advanced seven (7) grounds of appeal contending that the ELC erred in law and in fact by:i.failing to properly exercise judicial discretion and thereby wrongly dismissing the application;ii.considering irrelevant considerations in determining the application and thereby improperly exercising judicial discretion;iii.holding that leave had to be obtained before a Notice of Appeal could be filed, thereby arriving at an erroneous conclusion and improperly exercising judicial discretion;iv.holding that the notice of appeal was invalid and thereby usurping the jurisdiction of the Court of Appeal, which alone is vested with authority to determine the validity or otherwise of a Notice of Appeal, thus occasioning a wrongful exercise of discretion;v.failing to appreciate that the right of appeal, whether exercisable with or without leave, is a constitutional right available to every litigant and ought not to be denied unreasonably, thereby improperly exercising judicial discretion;vi.misdirecting himself on the applicable principles governing the exercise of judicial discretion, thereby occasioning injustice to the appellant; andvii.failing to consider the totality of the compelling reasons advanced for the delay in filing the application for leave to appeal out of time, thereby arriving at an erroneous conclusion and improperly exercising judicial discretion. 15.The appellant prayed for orders: setting aside the rulings and orders of the ELC dated 5th April 2019 and issued on 22nd May 2019; and that its application dated 27th May 2019 be allowed with costs. Submissions by Counsel 16.At the hearing of the appeal, the appellant was represented by learned counsel Mr. Mutava while the 2nd respondent was represented by Ms. Evelyn Kyania. There was no appearance on behalf of the 1st respondent, counsel present confirming that the present appeal did not affect the 1st respondent. 17.Mr. Mutava submitted that the ELC erred in law and fact by permitting the 2nd respondent’s Bill of Costs to proceed despite the existence of an apparent and unlawful conflict of interest. Counsel contended that the 2nd respondent, as a public officer holding the office of County Attorney, was constitutionally and statutorily barred from engaging in private legal representation against the County Government he served. Counsel relied on Articles 73,75, and 232 of the Constitution, together with Section 12 of the Leadership and Integrity Act and provisions of the Public Procurement and Asset Disposal Act, to assert that the engagement violated principles of integrity, accountability, and public trust. 18.Counsel further submitted that the impugned ruling sanctioned an irregular and unlawful enrichment scheme by allowing the 2nd respondent to pursue a claim amounting to Kshs.366,670,971.70 against the County Government. Counsel submitted that the ELC failed to appreciate the grave public interest implications and the substantial financial prejudice that would be occasioned to taxpayers if the Bill of Costs were allowed to proceed. 19.In addition, counsel challenged the refusal of the court to grant a stay of proceedings pending appeal. Counsel asserted that the ELC failed to apply the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which obligates courts to facilitate the just, proportionate, and efficient resolution of disputes. Counsel further submitted that the ELC improperly characterized the stay application as “negative,” without adequately considering the magnitude of the financial exposure facing the appellant. 20.Counsel impugns the ELC’s interpretation of procedural requirements relating to leave to appeal. Counsel submitted that the ELC erroneously held that leave was required before filing a Notice of Appeal, contrary to Rule 76(4) of this Court’s Rules. Counsel asserted that procedural rules ought not to override substantive justice and cited several authorities emphasizing that rules of procedure are handmaidens of justice rather than instruments for defeating legitimate claims. 21.Counsel further submitted that the ELC improperly declined an application for forensic examination of documents allegedly authorizing the 2nd respondent’s engagement. Counsel maintained that there were serious concerns regarding forgery and unauthorized representation, and that refusal to permit forensic analysis denied the appellant an opportunity to objectively challenge the authenticity of the disputed documents. Counsel argued that the ELC thereby compromised the appellant’s constitutional right to a fair hearing under Article 50 of the Constitution. 22.In support of the appellant’s position, counsel relied on constitutional provisions, statutory enactments, and judicial precedents addressing public integrity, procedural justice and the courts’ obligation to prioritize substantive justice over technical procedural barriers. Counsel relied on the decision of Republic Ex Parte Chudasama v Chief Magistrate’s Court Nairobi & Another and various decisions emphasizing that procedural rules should not be applied mechanistically where doing so would occasion injustice. 23.Consequently, counsel prays that this Court sets aside the impugned rulings, declare the 2nd respondent’s engagement void ab initio on account of conflict of interest and statutory violations, grant leave to appeal, issue a stay of proceedings in the lower courts, and make such further orders as may be necessary to safeguard public resources and uphold the rule of law. 24.Ms. Kyania opposed the appeal and submitted that the appeal arose from the taxation of an advocate-client bill of costs between Boniface Kabaka (Deceased) t/a Kabaka & Associates Advocates and the appellant, and that the 1st respondent was therefore not directly affected by the appeal. 25.Counsel submitted that following the demise of Boniface Kabaka (Deceased) Dr. Benjamin Musau had initially been appointed administrator of the law firm, and subsequently Ms. Vascoline Katanu Mwanzia was substituted as the legal representative of the estate by an order of the Court issued on 14th February 2025. 26.Counsel further submitted that the 2nd respondent intended to seek appropriate relief to set aside those proceedings on the ground that the applications had been determined in their absence and contrary to earlier directions issued on 13th July 2021 by Laibuta, JA, directing that the application dated 4th October 2019 be heard on priority basis. Counsel submitted that the subsequent hearing of the appellant’s application ahead of the 2nd respondent’s application occasioned prejudice to the 2ndrespondent. 27.On the substantive appeal, counsel submitted that the Deceased had been duly instructed by the appellant to represent it in Machakos ELC Case No. 40 of 2015, and that such engagement had been transparent and authorized by the relevant County officials. That following the completion of instructions, the advocate filed an advocate-client bill of costs in Machakos Miscellaneous Application No. 387 of 2017 for taxation. 28.Counsel further submitted that the appellant had unsuccessfully applied before the trial court for leave to appeal and for stay of the taxation proceedings, which application was dismissed with costs, precipitating the present appeal. In the meantime, the taxation proceedings proceeded to conclusion, culminating in a ruling delivered on 6th November 2019 in which the advocate-client bill of costs was taxed at Kshs.125,334,430. Counsel referred the Court to the certificate of taxation and the taxation ruling contained in the supplementary record of appeal. 29.Counsel further submitted that the appellant subsequently challenged the taxation through ELC Miscellaneous Application No. 66 of 2019 by way of a reference, but the same was dismissed with costs on 24th January 2024. Counsel contended that, in light of those subsequent proceedings, the present appeal had been overtaken by events as the proceedings sought to be stayed had already been concluded and the appellant had not challenged the subsequent determinations. 30.Accordingly, counsel urged the Court to find that the appeal lacked merit and to dismiss it with costs to the 2nd respondent. Determination 31.This being a first appeal, this Court is under a duty to reconsider, re- evaluate, and analyze the material that was placed before the trial court and to draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 32.Further, in the exercise of its appellate jurisdiction, this Court is guided by the decision of the former Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424. 33.We have carefully considered the record of appeal, the submissions by counsel, the authorities cited, and the applicable constitutional and statutory framework. 34.In our view, the following issues arise for determination:a.Whether the notice of appeal lodged by the appellant was valid notwithstanding the absence of prior leave;b.Whether the learned Judge properly exercised judicial discretion in declining leave to appeal;c.Whether the learned Judge failed to address material issues relating to the existence of a retainer and alleged conflict of interest;d.Whether the learned Judge adopted an unduly technical approach inconsistent with constitutional principles governing the administration of justice. 35.A notice of appeal is the foundational instrument through which a party signifies its intention to invoke the appellate jurisdiction of this Court. Rule 77(4) of this Court’s Rules expressly provides that where leave to appeal is required, such leave need not be obtained before lodging a notice of appeal. 36.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR underscored the jurisdictional significance of a notice of appeal, observing that “the Notice of Appeal is a jurisdictional prerequisite,” as it is the instrument through which a party signifies its intention to invoke the appellate jurisdiction of the Court. 37.Consequently, once the appellant lodged the notice of appeal dated 9th April 2019, any questions regarding its competence or validity became a matter for determination by this Court and not the trial court. The question regarding the competence or validity of the notice of appeal properly fell for determination before this Court. In the circumstances, we respectfully take a different view from that reached by the learned Judge regarding the status of the notice of appeal. 38.The grant or refusal of leave to appeal is an exercise of judicial discretion which must be exercised judiciously, rationally and upon proper consideration of all relevant factors. A careful reading of the impugned ruling demonstrates that the learned Judge appears to have adopted a narrow and mechanical interpretation of Order 43 Rule 3 of the Civil Procedure Rules. The intended appeal raised weighty and substantial issues, including allegations that the 2nd respondent acted without instructions, allegations of forged pleadings and affidavits, and claims of conflict of interest. With respect, the impugned ruling placed considerable emphasis on the procedural aspects of the application without fully engaging with the broader issues raised by the appellant. 39.The appellant consistently maintained that the 2nd respondent lacked a lawful retainer and therefore had no basis upon which to institute proceedings or subsequently claim advocate-client costs. In Omulele & Tollo Advocates v Mount Holdings Ltd [2016] eKLR, this Court held that where a retainer is disputed, the burden lies upon the advocate to establish the existence of instructions. Despite the centrality of the issue, the impugned ruling does not appear to have substantively addressed the question whether a valid retainer existed. 40.Further, the appellant alleged that the 2nd respondent acted in conflict of interest by instituting proceedings through his private law firm whilst simultaneously serving as County Attorney and Legal Advisor to the appellant. Article 73(2) of the Constitution requires public officers to exercise authority in a manner consistent with integrity, objectivity, and accountability. The allegations raised before the ELC therefore transcended ordinary procedural disputes and implicated constitutional values and public confidence in the administration of justice. 41.Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities. In the instant appeal, the impugned ruling adopted an approach that gave significant weight to procedural considerations, and in our view insufficient weight to the constitutional imperative of substantive justice. 42.Having reconsidered the record and the applicable law, we are satisfied that the notice of appeal dated 9th April 2019 was validly lodged pursuant to Rule 77(4) of the Court of Appeal Rules. With respect, we are unable to agree with the manner in which the learned Judge exercised discretion in declining leave to appeal. 43.Further, we find that the impugned ruling did not sufficiently address the appellant’s allegations regarding the absence of a retainer, alleged forgery of pleadings and affidavits, and the alleged conflict of interest involving the 2nd respondent. Consequently, and as demonstrated, the learned Judge failed to consider matters that he should have and thereby arrived at a wrong decision. 44.Taken cumulatively, the matters identified above justify appellate intervention. Accordingly, we find merit in the appeal. The ruling of the ELC dated 21st June 2019 is hereby set aside. Leave to appeal against the ruling of the ELC dated 5th April 2019 is hereby granted. 45.The appellant shall have the costs of the appeal. 46.It is so ordered. 47.Finally, the delay in delivery of this judgment is regretted and we apologize for the delay. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.S. GATEMBU KAIRU, FCIArb, C.Arb................................JUDGE OF APPEALJAMILA MOHAMMED................................JUDGE OF APPEALW. KORIR................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR