National Bank of Kenya v Behan & Okero Advocates [2007] KECA 133 (KLR)
The bottom line
#The Court of Appeal upheld striking out a legal costs bill because the winning party skipped the required draft-order approval step.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether rule 34(2) of the Court of Appeal Rules, requiring preparation and approval of a draft order, applies to taxation of a bill of costs before the Deputy Registrar
- 2.Whether the Deputy Registrar erred in striking out the bill of costs for failure to follow the procedure in rule 34(2)
Key legal issues
#Procedure under rule 34(2) of the Court of Appeal Rules in taxation of bills of costs
The procedure requiring the successful party to draw a draft order for approval applies, and failure to follow it justified striking out the bill of costs
The court considered rules 34(2) and 105 of the Court of Appeal Rules together with what was before the Deputy Registrar and counsel's submissions. It concluded that the applicant had not drawn the order for approval as required by rule 34(2), that the preliminary objection was properly upheld, and that the correct procedure must be strictly adhered to.
Legal principles established
#- A party who has substantially succeeded must, as soon as practicable, prepare a draft order and submit it for the approval of the other parties before proceeding, and the correct procedure must be strictly adhered to
Court orders
#- 1.The reference is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (Deputy Registrar)
- Not stated
- Jurisdiction invoked
- Reference from the decision of the Deputy Registrar pursuant to rule 9 of the Court of Appeal Rules
Relief refused
#Setting aside the Deputy Registrar's order striking out the bill of costs
The court held the Deputy Registrar correctly upheld the preliminary objection since the proper procedure under rule 34(2) had not been followed
Costs
The reference is dismissed with costs (costs awarded against the applicant)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is my view that the correct procedure must be strictly adhered to and that is what the Deputy Registrar, not in so many words, accepted by upholding the preliminary objection.
Rule 34(2)(a) of the Rules provides that the party who has substantially been successful shall as soon as practicable, prepare a draft of the order and shall submit it for the approval of the other parties.
In view of the foregoing this reference is dismissed with costs.
Issues in the judgment
#The judgment does not state the case number, the names of the parties, or the details of the decision below beyond the Deputy Registrar's order; identification relies solely on counsel's names and the court station
The judgment appears on its face to be delivered by a single Judge of Appeal, though Court of Appeal references may ordinarily be heard by more than one judge; only E. O. O'Kubasu is named
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya v Behan & Okero Advocates [2007] KECA 133 (KLR)", Case Analysis (2007). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/133/eng@2007-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.