1. To the adherents of the Catholic faith; the doctrine of Papal Infallibility is a non - negotiable doctrine of their faith. This means that when the Holy Father (The Pope) speaks as a Supreme Shepherd and teacher of the Church, intends to define a doctrine, concerning faith or morals, he is infallible.
2. The Pope is said to be speaking “Ex Cathedra” or from the seat of Saint Peter. When the Pope speaks authoritatively on matters of the faith, from the seat of Saint Peter, he is said to be free from error and he and cannot be contradicted or overruled. After all he is speaking as he Vicar of Christ here on earth.
3. This doctrine of infallibility does not extend to judicial pronouncements made by a Learned Judge. Looking at the entire architecture of the Kenya judicial system, it is based on progressive Appellate Courts. It starts from the Tribunals and the Magistrate’s Courts, to the High Court and Courts of Equal Status. It then moves to the Court of Appeal and then on to the Supreme Court.
4. This recognizes the lived realities that Judicial Officers and Judges do make errors and mistakes. Were judges infallible, then the Courts of Appeal and the Supreme Court would be superfluous appendages to our judicial system. Yet this is not so.
5. At the heart of every learned Judge, there beats a constant tone that “I am skilled in my work and dispense justice fairly and justly, but I am not infallible.”
6. This does not mean that Judges render decisions while second guessing themselves. Judges render decisions with the full knowledge that they have given the matters before them all their due attention and consideration. That having followed the law and evidence, they have arrived at a just conclusion.
7. An appeal is always welcome to a Judge. It is an opportunity for the decision-making process as well as the decision itself to be reviewed by a higher Court. Three or sometimes five or seven fresh, independent legal minds. Three or sometimes five or seven wise men and women. If they confirm the decision, the Judge get feedback through the case back system. He is comforted that indeed he made the right judgement call. If the decision is overruled, the Judge then has an opportunity to relook, reflect and introspect on the matter. He is able to recalibrate himself to the wisdom of the Appellate Court, which by law is binding upon him. That is by virtue of the doctrine of stare decisis. This clarified or new knowledge and wisdom, impacts into the future decisions of the Judge. In this way we grow our legal systems. The Judge’s mind sharpens. Justice is dispensed fairly and justly. Jurisprudence emerges or expands.
8. Bearing this in mind, a Judge who knows that he is infallible cannot be perceived to be gate keeping for the Court of Appeal.
9. The application before the Court is by way of a Notice of Motion dated 8th May, 2026. it seeks the following orders;
“1. THAT this application be certified as urgent, service thereof be dispensed with, and the same be heard ex parte.
2. THAT this Honourable Court be pleased to grant the Applicant leave to appeal against the Ruling delivered on 29 April 2026.
3. THAT costs of this Application be in the intended appeal.”
Background Facts
10. The Client/Applicant filed an application by way of a Notice of Motion dated 6th May, 2025. It sought the following orders;
“(1) Spent.
(2) Spent.
(3) Spent.
(4) The court to issue a declaration that a binding agreement on fees exists between the Applicant and the Respondent relation to the legal services rendered in connection with Account Numbers 6682003059 and 6682003378.
(5) Upon the finding in prayer (4 above) the Court to invoke its supervisory jurisdiction under Article 165(6) and (7) of the Constitution of Kenya to call for, review, and quash all such taxation proceedings instituted by the Respondent in respect of legal services rendered to the Applicant in connection with Account Numbers 6682003059 and 6682003378, for being without jurisdiction and instituted in breach of Section 45(6) of the Advocates Act, and to award the costs of the unlawfully instituted taxation proceedings to the Applicant.
(6) A permanent injunction does issue restraining the Respondent, whether by itself, its agents, or its advocates, from instituting or continuing with any taxation proceedings, or from enforcing or acting upon any orders obtained in respect of legal services rendered to the Applicant in relation to Kiwipay Account Numbers 6682003059 and 6682003378 held with the Applicant.
(7) Costs of this Application and those of the individual taxation proceedings be awarded to the Applicant.”
11. By a Ruling dated 2th April, 2025, the Court dismissed the application with costs.
12. Aggrieved by this Ruling the Client/Applicant has filed an Appeal to the Court of Appeal. It maintains that pursuant to Order 43(1) (3) of the Civil Procedure Rules, leave to appeal is a requirement. That such leave was not sought when the Court delivered the Ruling.
13. The Application is opposed by the Advocate/Client. This is through the Replying Affidavit of Gad Ouma sworn on 25th May, 2026.
Issues for Determination
14. The Court has considered the application, the Replying Affidavit and the oral highlights by Counsel for the parties. The Court frames a single issue for determination.
a) Whether the Applicant should be granted leave to appeal.
Analysis
15. The requirement for leave to appeal is set out in Order 43(1) (3) of the Civil Procedure Rules which states as follows;
(3) An applications for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.
16. At the heart of the dispute between the parties is whether there existed binding fee agreements between the Advocate and the Client. If the binding fee agreements existed, then it would follow that the Advocate cannot purpose to tax Bills of Costs against the Client.
17. If on the other hand, there are no binding fees agreements, the Advocate would be entitled to draw and tax his bills of costs as against the Client.
18. This is in accordance with Section 45 (6) 6 of the Advocates Act which states as follows;
Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.
19. This Court rendered itself on 29th April, 2026 and declined to find that there was a binding fee agreement. This paved the way for the taxation of the Bills of Costs which are said to be ongoing. Some of the Bills of Costs have already been taxed. Notices of Objection to the taxed Bills of Costs and the Certificates of Costs that have issued, have already been filed. It may be that this matter will find its way back to this Court on a reference. However, the Court cannot anticipate or speculate on the nature of the references to be filed.
20. To the matter at hand, the Court has been notified that an application for stay of proceedings under Rule 5(2) (b) of the Court of Appeal Rules has been filed. It now appears that the arena of the battle has shifted to the Court of Appeal.
21. The Court is not persuaded that the Appeal is frivolous or baseless or that it raises no arguable issue. That neither can it be argued that the appeal has no reasonable chance of success nor that the issues are not appealable as of right.
22. The Court is persuaded to grant the leave to appeal.
23. As to costs, the same lie at the discretion of this Court. The fair order in the circumstances is that let the costs be in the cause.
Determination
24. The applicant’s application is dated 8th May, 2026 is allowed in the following terms;
1.) THAT this Honourable Court HEREBY grants the Applicant leave to appeal against the Ruling delivered on 29 April, 2026.
2.) THAT costs of this Application be in the cause.
25. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 28TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Munene for the Applicant.
Mr. Amol for the Respondent.
Ms. Susan Nzioka - Court Assistant.
2. The Pope is said to be speaking “Ex Cathedra” or from the seat of Saint Peter. When the Pope speaks authoritatively on matters of the faith, from the seat of Saint Peter, he is said to be free from error and he and cannot be contradicted or overruled. After all he is speaking as he Vicar of Christ here on earth.
3. This doctrine of infallibility does not extend to judicial pronouncements made by a Learned Judge. Looking at the entire architecture of the Kenya judicial system, it is based on progressive Appellate Courts. It starts from the Tribunals and the Magistrate’s Courts, to the High Court and Courts of Equal Status. It then moves to the Court of Appeal and then on to the Supreme Court.
4. This recognizes the lived realities that Judicial Officers and Judges do make errors and mistakes. Were judges infallible, then the Courts of Appeal and the Supreme Court would be superfluous appendages to our judicial system. Yet this is not so.
5. At the heart of every learned Judge, there beats a constant tone that “I am skilled in my work and dispense justice fairly and justly, but I am not infallible.”
6. This does not mean that Judges render decisions while second guessing themselves. Judges render decisions with the full knowledge that they have given the matters before them all their due attention and consideration. That having followed the law and evidence, they have arrived at a just conclusion.
7. An appeal is always welcome to a Judge. It is an opportunity for the decision-making process as well as the decision itself to be reviewed by a higher Court. Three or sometimes five or seven fresh, independent legal minds. Three or sometimes five or seven wise men and women. If they confirm the decision, the Judge get feedback through the case back system. He is comforted that indeed he made the right judgement call. If the decision is overruled, the Judge then has an opportunity to relook, reflect and introspect on the matter. He is able to recalibrate himself to the wisdom of the Appellate Court, which by law is binding upon him. That is by virtue of the doctrine of stare decisis. This clarified or new knowledge and wisdom, impacts into the future decisions of the Judge. In this way we grow our legal systems. The Judge’s mind sharpens. Justice is dispensed fairly and justly. Jurisprudence emerges or expands.
8. Bearing this in mind, a Judge who knows that he is infallible cannot be perceived to be gate keeping for the Court of Appeal.
9. The application before the Court is by way of a Notice of Motion dated 8th May, 2026. it seeks the following orders;
“1. THAT this application be certified as urgent, service thereof be dispensed with, and the same be heard ex parte.
2. THAT this Honourable Court be pleased to grant the Applicant leave to appeal against the Ruling delivered on 29 April 2026.
3. THAT costs of this Application be in the intended appeal.”
Background Facts
10. The Client/Applicant filed an application by way of a Notice of Motion dated 6th May, 2025. It sought the following orders;
“(1) Spent.
(2) Spent.
(3) Spent.
(4) The court to issue a declaration that a binding agreement on fees exists between the Applicant and the Respondent relation to the legal services rendered in connection with Account Numbers 6682003059 and 6682003378.
(5) Upon the finding in prayer (4 above) the Court to invoke its supervisory jurisdiction under Article 165(6) and (7) of the Constitution of Kenya to call for, review, and quash all such taxation proceedings instituted by the Respondent in respect of legal services rendered to the Applicant in connection with Account Numbers 6682003059 and 6682003378, for being without jurisdiction and instituted in breach of Section 45(6) of the Advocates Act, and to award the costs of the unlawfully instituted taxation proceedings to the Applicant.
(6) A permanent injunction does issue restraining the Respondent, whether by itself, its agents, or its advocates, from instituting or continuing with any taxation proceedings, or from enforcing or acting upon any orders obtained in respect of legal services rendered to the Applicant in relation to Kiwipay Account Numbers 6682003059 and 6682003378 held with the Applicant.
(7) Costs of this Application and those of the individual taxation proceedings be awarded to the Applicant.”
11. By a Ruling dated 2th April, 2025, the Court dismissed the application with costs.
12. Aggrieved by this Ruling the Client/Applicant has filed an Appeal to the Court of Appeal. It maintains that pursuant to Order 43(1) (3) of the Civil Procedure Rules, leave to appeal is a requirement. That such leave was not sought when the Court delivered the Ruling.
13. The Application is opposed by the Advocate/Client. This is through the Replying Affidavit of Gad Ouma sworn on 25th May, 2026.
Issues for Determination
14. The Court has considered the application, the Replying Affidavit and the oral highlights by Counsel for the parties. The Court frames a single issue for determination.
a) Whether the Applicant should be granted leave to appeal.
Analysis
15. The requirement for leave to appeal is set out in Order 43(1) (3) of the Civil Procedure Rules which states as follows;
(3) An applications for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.
16. At the heart of the dispute between the parties is whether there existed binding fee agreements between the Advocate and the Client. If the binding fee agreements existed, then it would follow that the Advocate cannot purpose to tax Bills of Costs against the Client.
17. If on the other hand, there are no binding fees agreements, the Advocate would be entitled to draw and tax his bills of costs as against the Client.
18. This is in accordance with Section 45 (6) 6 of the Advocates Act which states as follows;
Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.
19. This Court rendered itself on 29th April, 2026 and declined to find that there was a binding fee agreement. This paved the way for the taxation of the Bills of Costs which are said to be ongoing. Some of the Bills of Costs have already been taxed. Notices of Objection to the taxed Bills of Costs and the Certificates of Costs that have issued, have already been filed. It may be that this matter will find its way back to this Court on a reference. However, the Court cannot anticipate or speculate on the nature of the references to be filed.
20. To the matter at hand, the Court has been notified that an application for stay of proceedings under Rule 5(2) (b) of the Court of Appeal Rules has been filed. It now appears that the arena of the battle has shifted to the Court of Appeal.
21. The Court is not persuaded that the Appeal is frivolous or baseless or that it raises no arguable issue. That neither can it be argued that the appeal has no reasonable chance of success nor that the issues are not appealable as of right.
22. The Court is persuaded to grant the leave to appeal.
23. As to costs, the same lie at the discretion of this Court. The fair order in the circumstances is that let the costs be in the cause.
Determination
24. The applicant’s application is dated 8th May, 2026 is allowed in the following terms;
1.) THAT this Honourable Court HEREBY grants the Applicant leave to appeal against the Ruling delivered on 29 April, 2026.
2.) THAT costs of this Application be in the cause.
25. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 28TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Munene for the Applicant.
Mr. Amol for the Respondent.
Ms. Susan Nzioka - Court Assistant.