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Court of AppealDismissedCivil Appeal No. 25 of 2016

Simon Mara Khate v Annet Mulamasi & Co. Advocates

Court of Appeal
17 January 2019
908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a client's challenge to legal fees because he skipped the mandatory step of taking the dispute to the High Court first.

What this practically means

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Executive summary

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The appellant, a former client of the respondent advocate, appealed against a ruling of the Deputy Registrar at Bungoma delivered on 25th November 2015 taxing a supplementary bill of costs at Kshs.20,745/=. The underlying advocate-client bills in Bungoma HCC No. 74 of 2010, Bungoma HCC No. 8 of 2012 and Kimilili SRMCC No. 73 of 2011 had been taxed on 8th July 2015, and the appellant's application for review of that taxation was dismissed on 5th August 2015. The appellant alleged bias by the taxing officer and concealment by the respondent of Kshs.100,000/= received on his behalf. The respondent countered that the Court's jurisdiction was not properly invoked, no notice of objection having been given and no reference to a High Court judge having been made. The Court of Appeal, in a single judgment of the court, held that paragraph 11 of the Advocates Remuneration Order prescribes the exclusive route for challenging a taxing officer's decision: objection to the taxing officer, a reference to a High Court judge, and then an appeal to the Court of Appeal only with the judge's leave. Since no reference had been dealt with by a judge, the appeal was premature and the Court's appellate jurisdiction was not properly invoked. The Court further found the notice of appeal, filed on 4th January 2018, was way out of time and defective for failing to mention the earlier orders the appellant actually sought to set aside. The appeal was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the appellate jurisdiction of the Court of Appeal was properly invoked in a taxation dispute absent a reference to a High Court judge
  2. 2.Whether the appeal was filed out of time and defective for challenging orders of 8th July 2015 and 5th August 2015

Key legal issues

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01

Invocation of the Court of Appeal's appellate jurisdiction in taxation matters

Holding

The jurisdiction was not properly invoked because no reference had been dealt with by a High Court judge; the matter was prematurely before the Court.

Reasoning

Paragraph 11 of the Advocates Remuneration Order prescribes a mandatory sequence: objection to the taxing officer, then a chamber summons reference to a judge, then appeal to the Court of Appeal only with the judge's leave. Since no reference to a judge occurred, the appeal was premature and the Court lacked jurisdiction.

p. 2
02

Timeliness and competence of the notice of appeal

Holding

The notice of appeal filed on 4th January 2018 was way out of time and defective as it did not mention the earlier orders of 8th July 2015 and 5th August 2015 which the appellant sought to set aside.

Reasoning

Although the memorandum of appeal targeted the ruling of 25th November 2015, the prayers sought to set aside costs orders in Bungoma HCCC No. 74 of 2010 and HCCC No. 8 of 2012, which were taxed on 8th July 2015 and reviewed with dismissal on 5th August 2015. The notice of appeal did not mention those earlier orders and was filed long outside the limitation period.

p. 2

Legal principles established

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  • A decision of a taxing officer may only be challenged by way of a reference to the High Court, and an appeal to the Court of Appeal lies only with the leave of the Judge upon such a reference.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Bungoma (Deputy Registrar, Yalwala, DR.)
HC. Misc. Application No. 125 of 2014
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order - appeal to the Court of Appeal only with leave of the Judge, following a reference to a High Court judge

Relief refused

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Setting aside the Deputy Registrar's ruling and orders on taxation

Appeal prematurely before the Court as no reference to a High Court judge was made; notice of appeal also out of time and defective

p. 2

Costs

Appeal dismissed with costs to the respondent

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.

Paragraph 11 is clear on how the appellate jurisdiction of this Court may be invoked in taxation proceedings.
p. 2Appellate jurisdiction in taxation
The decision of the Deputy Registrar can only be challenged by way of a reference to the High Court. Therefore, the appellate jurisdiction of this Court has not been properly invoked.
p. 2Reference as prerequisite to appeal
For these reasons, we find that this appeal must fail. It is accordingly dismissed with costs.
p. 2Disposition

Issues in the judgment

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minor

Notice of appeal date appears as 4th January 2018 in the judgment, which post-dates the appeal number of 2016 and may be a typographical error for 2016.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Mara Khate v Annet Mulamasi & Co. Advocates", Case Analysis (2019). Civil Appeal No. 25 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1057/eng@2019-01-17

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