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Court of AppealAllowedCivil Appeal No. 110 of 2016

C.B. Gor & Gor v Oriental Commercial Bank Limited (formerly known as Delphis Bank Limited) [2018] KECA 396 (KLR)

Court of Appeal
5 July 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
3,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that only the taxing master—not the High Court—can strike out pending advocates' bills of costs.

What this practically means

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Executive summary

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This appeal concerned two questions: whether the High Court has jurisdiction to strike out bills of costs pending before the taxing master, and whether those bills were time barred under Section 4(1)(a) of the Limitation of Actions Act. The respondent bank, a former client of the appellant advocates' firm, filed a Notice of Motion seeking to strike out six bills of costs filed in October 2015 on the ground that the advocates'/client relationship had ended in October 2005 and the claims were statute barred. Njoki Mwangi, J. allowed the application and struck out the bills with costs. The Court of Appeal allowed the appeal. It held that the High Court's jurisdiction in taxation matters is confined to references under paragraph 11 of the Advocates (Remuneration) Order, consent references under paragraph 12, and suits for recovery of costs under Section 48 of the Advocates Act. Relying on paragraph 13A of the Order and its own decision in Otieno Ragot & Company Advocates vs. Kenya Airports Authority, the Court held that the taxing master must also have power to determine objections to the competency of a bill; an application to strike out bills already scheduled for taxation should have been dealt with by the taxing master in the first instance. The learned Judge therefore acted without jurisdiction, rendering her ruling a nullity. The Court declined to decide the limitation question, set aside the ruling of 29th September 2016, substituted an order striking out the respondent's application with costs, and awarded the appellant the costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the High Court has jurisdiction to strike out bills of costs that are pending before the taxing master
  2. 2.Whether the bills of costs as filed by the appellant were time barred under Section 4(1)(a) of the Limitation of Actions Act

Key legal issues

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01

Whether the High Court could strike out bills of costs pending before the taxing master

Holding

The learned Judge acted without jurisdiction; the application should have been dealt with by the taxing master in the first instance.

Reasoning

Jurisdiction is conferred by the Constitution or statute and a decision made without it is a nullity. The High Court's involvement in taxation arises only through a reference under paragraph 11, a consent reference under paragraph 12, or a suit under Section 48 of the Advocates Act. Paragraph 13A empowers the taxing officer to take all proceedings necessary to determine any matter in dispute before him, which encompasses objections to the competency of a bill. The bills were already scheduled for taxation, so the Judge's intervention usurped the taxing master's primary and special jurisdiction.

p. 4
02

Whether the bills of costs were time barred

Holding

The Court declined to determine this issue since the appeal succeeded on jurisdiction alone.

Reasoning

Having found that the High Court acted without jurisdiction in entertaining the striking-out application, the Court saw no reason to delve into the limitation question. The issue was therefore left undecided, and the decision below was set aside purely on jurisdictional grounds.

p. 4

Legal principles established

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  • Where bills of costs are pending before the taxing master, the High Court has no jurisdiction to entertain an application to strike out those bills; such an objection must be dealt with by the taxing master in the first instance before escalating to the High Court.
  • A taxing master charged with taxing bills of costs also has power to determine an objection as to the competency of a bill, by virtue of paragraph 13A of the Advocates (Remuneration) Order.
  • The High Court's jurisdiction in taxation matters is limited to references under paragraph 11, references by consent under paragraph 12 of the Advocates (Remuneration) Order, and suits for recovery of costs under Section 48 of the Advocates Act.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the High Court dated 29th September 2016 set aside
  3. 3.Ruling substituted with an order striking out the respondent's application dated 8th April 2016
  4. 4.Respondent's application dated 8th April 2016 struck out with costs
  5. 5.Appellant to have costs of this appeal

The bench

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

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
H.C. Misc. Applic. No. 296 of 2015 (as consolidated with H.C. Misc. Applic. Nos. 297, 298, 299, 300, 301 & 302 of 2015)
Jurisdiction invoked
First appellate jurisdiction under the Constitution over appeals from the High Court; the dispute concerns jurisdiction under the Advocates Act and the Advocates (Remuneration) Order

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.

Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction
p. 3Primacy of jurisdiction (quoting Owners of Motor Vessel 'Lillian S')
The above provision surely must mean that a taxing master who is charged with the duty of taxing bills of costs must also have the power to determine an objection as to the competency of the bill.
p. 4Taxing master's power over objections to competency of bills
we allow the appeal and set aside the ruling dated 29th September, 2016 and substitute the same with an order striking out the respondent’s application dated 8 th April, 2016 with costs. The appellant shall also have costs of this appeal.
p. 4Final orders and disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "C.B. Gor & Gor v Oriental Commercial Bank Limited (formerly known as Delphis Bank Limited) [2018] KECA 396 (KLR)", Case Analysis (2018). Civil Appeal No. 110 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/396/eng@2018-07-05

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