Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in judgment (Miscellaneous Cause arising from Kitale ELC No. 103 of 2015)· [2017] KEELC 395 (KLR)

Nyakinyua Mugumu Tree Company Ltd v Joseph Mwangi Gichuhi & 6 others [2017] KEELC 395 (KLR)

Environment and Land Court
23 November 2017
2,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck down a challenge to taxed legal costs because the litigant used the wrong procedure instead of the mandatory Rule 11 reference process.

What this practically means

#

Executive summary

#
The plaintiff moved the court by Notice of Motion dated 11/4/2017 seeking, among other things, a stay of execution and the setting aside of the defendants' Certificate of Costs dated 10/3/2017, with a fresh inter partes assessment of the Bill of Costs. The grievance was dissatisfaction with the quantum taxed and the fact that the taxation was conducted ex parte without notice to the plaintiff or its advocates. The 1st, 2nd and 3rd defendants filed grounds of opposition contending, among other things, that the court lacked jurisdiction because the mandatory reference procedure under Rule 11 of the Advocates Remuneration Order had not been followed, that the application was out of time, and that no taxation principles were shown to have been breached. The court framed three issues. It held the omission of grounds on the motion's face was not fatal since a supporting affidavit supplied them, a mere technicality cured by Order 51 Rule 10(2). On jurisdiction, the court held that objections to a taxing officer's decision lie only by reference under Rule 11 of the Advocates Remuneration Order, and that a litigant cannot invoke Order 45 and Section 80 of the Civil Procedure Act to circumvent that special regime, applying Hezekiel Oira and Kinyua Muyaa and distinguishing Simon Makili Maluki, where the taxation notice had been posted to a wrong address. No review grounds were demonstrated, and the prayer for fresh assessment appeared only in the supporting affidavit, compounding the defect. The application was struck out with no orders as to costs.

Key legal issues

#
01

Whether omission of grounds on the face of the Notice of Motion is fatal

Holding

Not fatal where a supporting affidavit filed with the motion states the grounds; the defect is technical and immaterial under Order 51 Rule 10(2)

Reasoning

Order 51 Rule 4 requires a Notice of Motion to state grounds in general terms, but the rule accommodates grounding on evidence via a supporting affidavit. Since the plaintiff's affidavit set out the grounds relied on, and Order 51 Rule 10(2) bars defeating applications on technicalities not affecting substance, the objection failed.

p. 2
02

Whether the court had jurisdiction to entertain a review of the Deputy Registrar's taxation under Order 45 and Section 80 of the Civil Procedure Act

Holding

No - the exclusive procedure for objecting to a taxing officer's decision is a reference under Rule 11 of the Advocates Remuneration Order, which the applicant did not invoke

Reasoning

The Advocates Remuneration Order is specifically tailored to taxation disputes and provides only for a reference to the High Court, with provision for extension of time; no appeal or Order 45 review is contemplated. A litigant cannot use the Civil Procedure Act and Rules to circumvent that special regime. Further, under Order 45 Rule 2 review lies only before the judge who made the order, which is impossible where the order was made by the Deputy Registrar on taxation.

p. 5
03

Whether the review grounds under Order 45 Rule 1 were demonstrated

Holding

No - no discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason was shown in the supporting affidavit

Reasoning

Review under Section 80 and Order 45 is conditional on demonstrating new and important matter or evidence, an error apparent on the face of the record, or sufficient reason. An examination of the affidavit disclosed none. Distinguishing Simon Makili Maluki, where the taxation notice was posted to the wrong address and the taxing officer's order was set aside, no comparable evidence was availed here.

p. 3
04

Whether the application was out of time and whether the Deputy Registrar violated taxation principles

Holding

Could not be determined because jurisdiction was never properly invoked; the application was an amalgam of a merits challenge and a challenge to the ex parte assessment without proper invocation of the court's jurisdiction

Reasoning

Since the application failed to invoke the Advocates Remuneration Order procedure, the court could not rule on timeliness or alleged breaches of taxation principles. The grievance as presented was directed mainly at the quantum of costs rather than at a demonstrable breach of natural justice in the ex parte taxation.

p. 5
05

Whether instituting the proceedings by way of a Miscellaneous Cause was objectionable

Holding

Not a valid objection - similar taxation-related matters have been brought by Miscellaneous Cause and the court has upheld some reliefs so sought

Reasoning

The court held that the manner of bringing proceedings as a Miscellaneous Cause was not itself a bar, as past taxation-related matters had been brought the same way, though this did not save the present application, which failed on jurisdiction and defective drafting.

p. 5

Legal principles established

#
  • Challenges to a taxing officer's decision must be brought by way of a reference under Rule 11 of the Advocates Remuneration Order, not by an application for review under Order 45 and Section 80 of the Civil Procedure Act, which cannot be used to circumvent the special procedure for taxation matters
  • A Notice of Motion is not fatally defective for failing to state grounds on its face where a supporting affidavit setting out the grounds is filed

Court orders

#
  1. 1.The application dated 11/4/2017 struck out with no orders as to costs

Authorities

#

Legislation

  • Advocates Remuneration OrderRule 11(1)
  • Advocates Remuneration OrderRule 11(4)
  • Civil Procedure RulesOrder 51 Rule 4
  • Civil Procedure RulesOrder 51 Rule 10(2)
  • Civil Procedure RulesOrder 45(1) and (2)
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Simon Makili Maluki -vs- David Mutie Musyoki
    2004 eKLR
  • Hezekiel Oira T/A Oira Advocate -vs- Kenya Broadcasting Corporation
    2015 eKLR
  • Kinyua Muyaa & Co. Advocates -vs- Kenya Ports Authority Pension Scheme & 8 Others
  • Abincha & Co. Advocates vs Trident Insurance Co Ltd
    (2013) eKLR, H.C Misc 527 of 2011
Jurisdiction invoked
Environment and Land Court Act jurisdiction invoked via Order 45(1) and (2) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act; challenge based on Rule 11(1) and 11(4) of the Advocates Remuneration Order

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyakinyua Mugumu Tree Company Ltd v Joseph Mwangi Gichuhi & 6 others [2017] KEELC 395 (KLR)", Case Analysis (2017). Not stated in judgment (Miscellaneous Cause arising from Kitale ELC No. 103 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/395/eng@2017-11-23

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