Nyakinyua Mugumu Tree Company Ltd v Joseph Mwangi Gichuhi & 6 others [2017] KEELC 395 (KLR)
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
#Key legal issues
#Whether omission of grounds on the face of the Notice of Motion is fatal
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)
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.
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
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
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.
Whether the review grounds under Order 45 Rule 1 were demonstrated
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
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.
Whether the application was out of time and whether the Deputy Registrar violated taxation principles
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
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.
Whether instituting the proceedings by way of a Miscellaneous Cause was objectionable
Not a valid objection - similar taxation-related matters have been brought by Miscellaneous Cause and the court has upheld some reliefs so sought
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.
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.The application dated 11/4/2017 struck out with no orders as to costs
- 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.