Anthony Milimu Lubulellah, Advocates v Patrick Mukiri Kabundu & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that no one—not even a lawyer—can be ordered to pay costs without being heard first.
What this practically means
#Executive summary
#Key legal issues
#Making substantive orders on a mention date
It was impermissible for the High Court to make the orders of 31st August 2004 on a mention date; the orders were made during a mention and the appellant was not invited to attend.
The court reaffirmed its earlier decisions holding that a judge had no business determining substantive issues on a mention date unless the parties agreed and counsel were heard. The appellant, against whom adverse costs orders were made, was not invited to the mention and no hearing notice was served on him. Such an approach is repugnant to the administration of justice and offends the enduring natural justice principle that no party should be condemned unheard.
Right to be heard before adverse personal costs orders against counsel
Counsel cannot be saddled with personal liability for costs without notice and an opportunity to answer the complaint against him.
Relying on J.B. Kohli v Bachulal Popatlaw, where a judge erred in ordering an appellant to pay costs personally without giving him an opportunity to answer the complaint, the court held that the right to be heard is an enduring principle of natural justice. The appellant, as legal counsel affected by the costs order, ought to have been heard before being condemned to pay costs, and his absence was not regularised by any service of hearing notice.
Legal principles established
#- A court may not determine substantive issues between opposing parties on a mention date without the parties' consent and without hearing them; doing so violates the principles of natural justice.
- A party, including counsel previously on record, cannot be condemned to pay costs personally without being given an opportunity to be heard and without service of a hearing notice.
Court orders
#- 1.Appeal allowed
- 2.Orders of Ojwang, J. issued on 31st August 2004 set aside in their entirety
- 3.Costs to the appellant
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No 649 of 1996
- Jurisdiction invoked
- First appeal against the judgment of the High Court under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Milimu Lubulellah, Advocates v Patrick Mukiri Kabundu & 3 others", Case Analysis (2019). Civil Appeal No 165 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/816/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.