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Court of AppealPartially AllowedCivil Appeal (Nairobi)

Joreth Ltd v Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR)

Court of Appeal of Kenya
15 February 2002
RKR.O. KwachASA.B. ShahSBS.E.O. Bosire
4,315 words in judgment
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The bottom line

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Kenya's Court of Appeal slashed a lawyer's fee award from Shs.9 million back to the taxing officer's figure and clarified how appeal deadlines are calculated.

What this practically means

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Executive summary

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This Court of Appeal judgment (Kwach, Shah and Bosire, JJA) disposed of two matters together: the respondent law firm's application to strike out the appeal, and the appeal itself against Oguk J's decision of 26th January 1999 increasing an advocate-client instruction fee from Shs.934,000/- (as taxed by C.K. Njai, Principal Deputy Registrar) to Shs.9,082,880/-. The Court rejected all competency objections. It held that seeking certified copies of proceedings does not disqualify an appellant from the proviso to rule 81(1) of the Court of Appeal Rules, since the record needs only uncertified copies, which were available on 26th March 1999; the appeal lodged on 19th April 1999 was therefore in time. The omission of seven documents and of a formal taxation order did not invalidate the record, because a judge hearing a reference from a taxing officer does not sit in appellate jurisdiction, so rule 85(2)(v) did not apply. Errors in the certificate of delay were immaterial as they misled no one. On the merits, the Court held that the value of the subject matter for instruction fee must be ascertained from the pleadings, judgment or settlement; failing that, the taxing officer may exercise discretion considering the nature and importance of the matter. The taxing officer had correctly rejected valuation opinions not in the pleadings, and the judge erred in adopting a Shs.1 billion valuation and in ignoring proviso (iv) of Schedule VIB, which caps the value at one-tenth of the capital value for possession claims. A judge on a reference should not re-tax a bill; where the taxing master erred in principle, the bill should be remitted. The appeal was allowed, the judge's ruling set aside, the taxing master's award reinstated, and costs awarded to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was instituted within the time prescribed by rule 81 of the Court of Appeal Rules, having regard to the proviso excluding time for preparation and delivery of copies
  2. 2.Whether the record of appeal was defective for omission of seven documents and of a formal order on taxation under rule 85(2)(v)
  3. 3.Whether the certificate of delay, drawn by the appellant's advocates but signed by the Principal Deputy Registrar, was invalid
  4. 4.Whether the learned Judge erred in increasing the instruction fee from Shs.934,000/- to Shs.9,082,880/- by taking the value of the suit properties at Shs.1 billion
  5. 5.Whether a judge on a reference from a taxing officer may re-tax a bill himself rather than remit it for taxation

Key legal issues

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01

Time for lodging appeal where certified copies were requested

Holding

The appeal was filed in time; the proviso to rule 81(1) speaks merely of 'copies' and uncertified copies were available on 26th March, 1999, so the appeal lodged on 19th April, 1999 was within time.

Reasoning

Certified copies are not needed to mount an appeal since rules 85(1)(d) and 85(1)(g) do not require certified copies. The Certificate of Delay confirmed uncertified copies were ready on 26th March, 1999. Time needed for certifying copies and for obtaining a certificate of delay is not excluded in computing the 60-day period.

p. 2
02

Sufficiency of the record of appeal

Holding

The omissions of the seven documents and of the formal order on taxation did not render the appeal incompetent; the documents belonged to the main suit file, and rule 85(2)(v) does not apply to a reference from a taxing officer.

Reasoning

The appeal was against the ruling in H.C. Miscellaneous Civil Cause No. 482 of 1998, and the omitted documents formed part of H.C.C.C. No. 6206 of 1992. Oguk J was not exercising appellate jurisdiction when hearing the reference, so rule 85(2)(v) was irrelevant; what follows taxation is a 'Certificate of Taxation' under section 51(2) of the Advocates Act.

p. 3
03

Validity of the certificate of delay

Holding

The error in the certificate (use of 'we' referring to the defendant) did not nullify it, as it misled no one and caused no prejudice; the alleged contradiction between paragraphs 4(a) and 4(b) did not exist.

Reasoning

Advocates may assist the Registry by drafting certificates of delay, but the signing officer must scrutinise them. The error did not go to the root of the matter. Kanyango was distinguishable because there the certificate was slanted to conceal late lodgment, which was not the case here.

p. 4
04

Assessment of instruction fee and value of subject matter

Holding

The taxing officer correctly rejected valuation 'opinions' not in the pleadings and exercised his discretion properly; the judge erred in taking the property value at Shs.1 billion and in ignoring proviso (iv) capping the value at one-tenth of the capital value for possession claims.

Reasoning

Valuation letters were not evidence and related to different parcels. The taxing officer considered the importance, complexity and general conduct of proceedings. Even assuming a Shs.1 billion value, proviso (iv) would yield one-tenth (Shs.100,000,000) and 1% thereof (Shs.1,000,000), a figure the judge's award could not reach.

p. 7
05

Power of a judge on a reference to re-tax

Holding

The judge erred in interfering with the taxing officer's discretion and in re-assessing the instruction fee himself; the proper course upon finding an error of principle is remission to a taxing officer.

Reasoning

Following Steel Construction & Petroleum Engineering (E.A.) Ltd v Uganda Sugar Factory Ltd, and counsel's reliance on D'Souza v Ferao and Arthur v Nyeri Electricity Undertaking, a judge may re-tax only to make corrections flowing from his decision; re-assessment on different principles should be remitted. Instruction fee is a static item charged once, but the taxing officer had not assessed it by reference to the stage the suit reached.

p. 7

Legal principles established

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  • Seeking certified copies of proceedings does not disqualify an appellant from the proviso to rule 81(1); only the time actually required for preparation and delivery of the copies needed to mount an appeal (uncertified copies suffice) is excluded, and time for certifying copies or obtaining a certificate of delay is not excluded.
  • A judge hearing a reference from a taxing officer sits in original, not appellate, jurisdiction; rule 85(2)(v) requiring a copy of the order appealed against does not apply to such references.
  • The value of the subject matter for assessing instruction fee must be ascertained from the pleadings, judgment or settlement; if not so ascertainable, the taxing officer may exercise discretion considering the nature and importance of the matter and other relevant circumstances.
  • A judge on a reference should not re-tax a bill; where the taxing master has erred in principle, the proper course is to remit the bill back for taxation by the same or another taxing officer with appropriate directions.
  • A judge on a reference against taxation ought not to interfere with the assessment of costs unless the taxing officer has misdirected himself on a matter of principle.

Court orders

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  1. 1.The several objections by the respondent to the competency of the appeal are rejected
  2. 2.The appeal is allowed
  3. 3.The ruling and order of Oguk J dated 26th January, 1999 is set aside
  4. 4.The amount awarded by Taxing Master Njai, being Shs.1,080,000/-, is reinstated
  5. 5.The respondent to pay the appellant costs of the proceedings before Oguk J in the superior court, costs of the motion in this appeal, costs occasioned by grounds for affirming the decision, and costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
AS
majority
SB
majority
On appeal from
High Court of Kenya (Nairobi)
H.C. Miscellaneous Civil Cause No. 482 of 1998 (reference from taxation in H.C.C.C. No. 6206 of 1992)
Jurisdiction invoked
Appeal to the Court of Appeal with leave under the Court of Appeal Rules (rule 81 and rule 85 of the Rules of this Court)

Relief refused

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Respondent's application to strike out the appeal for breach of rules 85(1) and/or 85(2) and for late institution under rule 81

The appeal was lodged in time because uncertified copies were available for collection on 26th March, 1999, and certified copies are not required to mount an appeal

p. 2

Costs

The respondent will pay to the appellant costs of the proceedings before Oguk J. in the superior court, costs of the motion in this appeal, costs occasioned by grounds for affirming the decision and also costs of this appeal itself.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Seeking certified copies of proceedings and ruling, per se, does not disqualify the appellant from relying on the proviso to rule 81(1) of the Rules as that proviso does not talk of certified or uncertified copies.
p. 2Computation of time for lodging appeal - certified vs uncertified copies
Time needed for certifying copies of proceedings and judgments or rulings is not to be excluded in computing such time for the simple reason that the record of appeal does not need certified copies of proceedings, judgments or rulings.
p. 2Exclusion of time under proviso to rule 81(1)
If the judge comes to the conclusion that the taxing master has erred in principle he should refer the bill back for taxation by the same or another taxing oficer with appropriate directions on how it should be done.
p. 7Proper course for a judge on a reference from taxation
We allow this appeal, set aside the ruling and order of Oguk J. dated 26th January, 1999 and reinstate the amount awarded by Taxing Master Njai being Shs. 1,080,000/=.
p. 8Final orders - disposition
The respondent will pay to the appellant costs of the proceedings before Oguk J. in the superior court, costs of the motion in this appeal, costs occasioned by grounds for afirming the decision and also costs of this appeal itself.
p. 8Costs order

Issues in the judgment

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minor

The judgment does not state the appeal number of the present appeal in the text; the case number field is inferred from internal references (H.C. Miscellaneous Civil Cause No. 482 of 1998 and H.C.C.C. No. 6206 of 1992 are the lower-court matters).

minor

The judgment records the taxing officer's awarded instruction fee as Shs.934,000/- in the narrative but the final order reinstates Shs.1,080,000/- as the amount awarded by the Taxing Master, without reconciling the two figures.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joreth Ltd v Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR)", Case Analysis (2002). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/153/eng@2002-02-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.