[2020] KEHC 2915 (KLR)
The court held that the right to appeal under Rule 11(3) of the Advocates Remuneration Order is not automatic and must be exercised judicially. The applicant failed to provide reasons in its deposition justifying the grant of leave, appearing to assume that leave was a matter of right. However, the court found that...
Source-derived case information.
- Citation
- [2020] KEHC 2915 (KLR)
- Parties
- Applicant: Showcase Property Limited; Respondent: Mugambi & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 232 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal
- Outcome
- Leave to appeal granted; applicant to bear costs of the application.
- Judges
- DAS Majanja
- Legal Topics
- Leave to Appeal, Advocates Remuneration Order, Reference Dismissal, Costs Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Showcase Property Limited
Applicant
Mugambi & Company Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant has established sufficient grounds for the grant of leave to appeal under Rule 11(3) of the Advocates Remuneration Order.
- 2 Whether leave to appeal should be granted as a matter of right or judicial discretion.
- 3 Whether the applicant has realistic prospects of success on appeal.
Ratio Decidendi
The court held that the right to appeal under Rule 11(3) of the Advocates Remuneration Order is not automatic and must be exercised judicially. The applicant failed to provide reasons in its deposition justifying the grant of leave, appearing to assume that leave was a matter of right. However, the court found that it could not conclude that the applicant had no realistic prospect of success on appeal, particularly since the issue raised involved the assessment of instruction fees, which could merit appellate consideration. Consequently, the court exercised its discretion to grant leave to appeal against the decision dismissing the reference, with the applicant to bear the costs of the...
Court Disposition
Leave to appeal granted; applicant to bear costs of the application.
Orders
- Leave to appeal against the decision dated 24th August 2020 is granted.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE HIGH COURT OF KENYA
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
MISC. CIVIL APPLICATION NO. 232 OF 2019
BETWEEN
SHOWCASE PROPERTY LIMITED............................CLIENT/APPLICANT
AND
MUGAMBI & COMPANY ADVOCATES......ADVOCATES/RESPONDENT
RULING NO.3
1. On 24th August 2020, I dismissed the applicant’s reference under Rule 11(1) of the Advocates Remuneration Order(“the Order”). The applicant now seeks leave of this court to appeal to the Court of Appeal by the Notice of Motion dated 4th September 2020 under Rule 11(3) of the Order which provides:
11 (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.
2. The grounds of the application are set out in the face of the application and the supporting affidavit of Francis Muhoro Gachanja sworn on 4th September 2020. He depones that after the reference was dismissed, I indicated that the appeal was as of right and it appears that no note was made in the file. Thereafter, his advocates applied for certified copies of an order but the respondent’s advocates objected to the Deputy Registrar on the ground that leave had not been obtained. His advocate therefore filed the application within the 14 days limited for filing a formal application.
3. The respondent opposed the application through the affidavit of John Mugambi sworn on 16th September 2020. He deponed that the legal fees subject of the bill of costs have been owing for a period of 7 years. He stated that the court had jurisdiction to grant leave to appeal, a mere intention to appeal was insufficient as a basis for granting leave and that the applicant had not established a basis for the grant of such leave. He stated that the court should ensure that the rights of the parties are taken into account and if the court is minded to grant leave, then such leave should be granted on terms that the amount of Kshs. 23,899,854/- certified by the Deputy Registrar should be secured.
4. In his further affidavit sworn on 25th September 2020, he reiterated what he had stated in his supporting affidavit. He deponed that at the time the oral application was made, counsel for the respondent did not object to the application and that the objection was an afterthought. He urged the court to grant unconditional leave to appeal.
5. I have considered the depositions and submissions in this matter and I take the following view. Since the right to appeal is circumscribed by the requirement for leave under Rule 11(3) of the Order, leave is not granted as a matter of right. In Kenya Shell Limited v Kobil Petroleum Limited [2006] eKLR, the Court of Appeal held that, “Whether or not the court would grant leave to appeal is a matter for the discretion of the court. As in all discretions exercisable by courts, however, it has to be judicially considered.”
6. This means there has to be a factual basis for the grant of such leave. In Machira T/A Machira & Company Advocates vs. Mwangi & Another[2002] 2 KLR 391, the Court of Appeal stated that:
The court will only refuse leave if satisfied that the applicant has no realistic prospects of succeeding on the appeal. The use of the word “realistic” makes it clear that fanciful prospects or an unrealistic argument is not sufficient. When leave is refused, the court gives short reasons which are primarily intended to inform the applicant why leave is refused. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has no prospects of success. For example, the issue maybe one which the Court considers should be in the public interest, be examined by this court or, to be more specific, this Court may take the view that the case raises a novel point or an issue where the law is clarifying. There must however almost always be a ground of appeal which merits serious judicial consideration.
7. With the above principles in mind, I would readily hold that no reasons have been given in the deposition for the grant of leave. In fact, the applicant’s deposition seems to proceed on the basis that the grant of leave is a matter of right and is available merely because, it intends to file an appeal from the dismissal of the reference. However, I cannot say that the applicant has no realistic prospect of succeeding on appeal on account of the fact that the issue raised concerns the manner of assessment of the instruction fees.
8. I therefore grant leave to appeal against the decision dated 24th August 2020. The applicant shall bear costs of the application.
DATED and DELIVERED at NAIROBI this 2ND day of OCTOBER 2020.
D.S. MAJANJA
JUDGE
Court Assistant: Mr M. Onyango
Mr Mungai instructed by Mungai Kalande and Company Advocates for the Client/Applicant.
Mr Otenyo with him Mr Mugambi instructed by Mugambi and Company Advocates.