Kenya Union of Savings & Credit Co-operative Limited v Onsando Osiemo T/A Onsando Osiemo & Company Advocates [2014] KECA 359 (KLR)

Kenya Union of Savings & Credit Co-operative Limited v Onsando Osiemo T/A Onsando Osiemo & Company Advocates [2014] KECA 359 (KLR)

IN THE COURT  OF APPEAL

AT NAIROBI

CORAM: WAKI, M'INOTI & J. MOHAMMED, JJ.A.

CIVIL APPLICATION NO. NAI 38 OF 2011 (UR 24/2011)

BETWEEN

KENYA  UNION OF SAVINGS & CREDIT CO-OPERATIVE LIMITED…..................APPLICANT

AND

ONSANDO OSIEMO T/AONSANDO OSIEMO & COMPANY ADVOCATES…..RESPONDENT

(Application for  leave from   the ruling and  order of  the High   Court  of  Kenya  at   Nairobi  (Koome,  J)   dated  28th January, 2011

in

HCCC NO. 81  OF 2005)

***************

RULING OF THE COURT

The Motion on Notice before us purports to be taken out  under “Order 39b),  41 and 47(1)  of the Court of Appeal Rules, 2010”. The obvious mistake notwithstanding, the  applicant, the  Kenya Union  of Savings & Credit Co- operative Limited, seeks  leave  to  appeal against the  ruling and  order of Koome J, (as she then  was) dated 28th January, 2011  and stay of further proceedings  in  HCCC  No  81  of  2005  pending the   lodging, hearing and determination of an intended appeal.

The  background to the application, as far as we  can  deduce from the paucity  of  information  supplied  by   the   applicant,  is  an   advocate-client relationship gone  sour  between the  parties. That  resulted in  the  advocate filing his Bill of Costs which was taxed at Kshs.1,372,909 by an order dated 27th May,  2010.  The  applicant did not  object to  the   taxation within the prescribed time or  at all.  On  30th   August, 2010, the  applicant took   out  a chamber summons seeking enlargement of time to  object to  the  taxation order of 27th  May,  2010  and  stay  of execution of the  awarded cost. That  is the  application that was  dismissed by  the  learned judge on  28th   January, 2011.

It would appear that  subsequently the  applicant applied before the High  Court  for leave  to  appeal against the  order of 28th  January, 2011. That application was  dismissed on  8th  February, 2011. Although rule  43  requires the  order of the  High  Court  declining leave  to  appeal to  be  attached to  the application that is made  before this  court for leave  to  appeal, that order is not part of the  record. Mr  Mondi, learned counsel for the  applicant, informs us that he is unable to get the  order as the  court file has since  gone  missing.

The grounds upon  which the  application before us is made  is that the total amount claimed in  the  Bill  of Costs  was  Kshs.609,427 but  the  taxed amount was  Kshs  1,613,509; that the  delay in  raising the  objection to  the taxation  was   occasioned  by   the   applicant’s former  advocates; that  the declining to grant leave  to appeal the  High  Court had  acted injudiciously and that the  respondent stands to suffer no prejudice.

Though, according to  the  return of service the  respondent’s advocate was served with the  hearing notice on 4th July, 2014, neither a representative of  the respondent  nor   its   advocate  appeared  in  court.  In  addition, the respondent did not file any grounds of objection or any replying affidavit.

Before us  Mr.  Mondi canvassed the  application on  the  basis  of the grounds and the  reasons that we have  set out  above. At the  conclusion of his submissions, it  became clear   however that  the   High   Court   had,   on  1 st September  2010,  ordered  the   applicant  to  deposit  Kshs.960,726  in  an interest earning account in the  joint names of the  advocates for the  parties. That  amount was  released to  the  advocates for the  respondent upon   the dismissal of the  applicant’s application on 28th January, 2010.

We  have considered the  application and  the  submissions of learned counsel. Before Koome,  J. the  applicant was  very  categorical that it was  not challenging the   amount  awarded in  the  taxed Bill  of Costs,  but   only   the interest awarded on the  decretal sum.  The learned judge also  found that at the time of applying for extension of time to  object to  the  taxation, the applicant  had   not  even   given  the   notice  or  sought  the   reasons for the taxation, as required by Rule 11 of the Advocates Remuneration Order.

The considerations that guide this  Court  in an application for leave  to appeal from a decision of the  High  Court  are  well  settled. In  SANGO  BAY ESTATES VS DRESDNER BANK AG (1972) EA, 17, the  predecessor of this Court  stated that  leave   should normally  be  granted  where prima   facie  it appears that  there  are   grounds  of  appeal  which  merit  serious  judicial consideration. And in  J. P. MACHIRA T/A MACHIRA & CO ADVOCATES VS WANGETHI MWANGI & ANOTHER, CA No  Nai  433  of  2001, this  Court expressed itself as follows on the  issue:

“The considerations for  the grant or  refusal of  an application for  leave   to   appeal   (a matter  for  the discretion  of  the  Court)  are   few   but  familiar  and   we consider it  desirable and useful  to  have  them  briefly stated. The  Court will  only  refuse leave if  satisfied that the applicant has  no realistic prospects of succeeding on the appeal. The  use of the word  “realistic” makes it clear that  fanciful prospect or  an  unrealistic argument is  not sufficient. When leave is  refused, the Court gives  short reasons which  are  primarily intended to inform the applicant why  leave is  refused. The  court can  grant the application  even   if  it is  not so  satisfied.  There can  be many reasons for  granting leave even if  the Court is not satisfied that the appeal has no prospects of success. For example, the issue  may  be one which  the Court considers should  in  the public interest be  examined by  this Court or, to be  more  specific, this Court may  take the view  that the case  raises a novel  point or  an  issue  where the law requires  clarification.  There must,  however,  almost always  be a groundof appeal  which merit  serious judicial consideration.”

See also  SADRUDIN KURJI & ANOTHER VS SHALIMAR LTD & OTHERS CA No  Nai  197 of 2004 and  DR WILSON MWONGA NGOKA  VS ANNE  NDINDA NGOKA  CA No Nai  296 of 2005.

In both   SANGO BAY ESTATES VS DRESDNER BANK AG (supra) and J.   P.  MACHIRA  T/A  MACHIRA  &  CO  ADVOCATES  VS  WANGETHI MWANGI & ANOTHER, (supra),  the  Court laid  particular emphasis on the fact that where the  order from which leave  is sought to appeal was made  in the  exercise of a judicial discretion, a rather stronger case  will  have  to  be made  out  to justify grant of leave  to appeal by this  Court.

In  this particular case  the  applicant  was  seeking  the  exercise of discretion of the  High  Court to extend time to enable it object to the  taxation of the  Bill  of Costs. The application for extension of time was  made  three months after the  taxation, without as much as a request to the  taxing master for the reasons for the  taxation. The  failure to object and  the  delay in  the making of the  application for extension of time to object, were  not seriously explained, other than  by a casual  statement blaming the  applicant’s former advocates, who were  not even  disclosed. We are satisfied that no strong case has been made out  to show  wrong exercise of judicial discretion by the  leaned judge and further that there is no new  or difficult point of law involved in the intended appeal. In those circumstances, there is  no  basis  to  support either the  prayer for leave   to appeal or for stay of proceedings. Accordingly, this application is not meritorious, and  the  same  is hereby dismissed. We make no orders on costs since  the  respondent did not appear to defend the application.

Dated and  delivered at Nairobi this 3rd day  of October, 2014.

 

P. N. WAKI

--------------------------------

JUDGE OF APPEAL

 

K. MINOTI

---------------------------------

JUDGE OF APPEAL

 

J. MOHAMMED

---------------------------------

JUDGE OF APPEAL

 

I certify that this is a true

copy  of the original.

DEPUTY REGISTRAR

 

jkc

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