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ELCAllowedELC 17 of 2015 (Miscellaneous Application)· [2017] KEELC 1800 (KLR)

Ochanda Onguru T/A Ochanda Onguru & Co.Advocates v Airport View Housing Ltd [2017] KEELC 1800 (KLR)

Environment and Land Court
31 July 2017
EOE. O. OBAGA
679 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The court set aside a lawyer's fee bill taxed without properly serving the client, confirming no one can lose a case without being heard.

What this practically means

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Executive summary

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Airport View Housing Limited, the client, applied to set aside an ex-parte taxation of an advocate-client bill of costs and the resultant certificate of taxation, contending that neither the bill nor any taxation notice was served upon it. The bill had been filed on 11th February 2015 by Ochanda Onguru & Co. Advocates, the former advocates, after the firm of Lesinko, Njoroge & Gathogo Advocates had come on record for the applicant by a notice of change filed on 5th February 2015 and served on 8th February 2015. The bill was taxed ex-parte in a ruling of 31st January 2017. The respondent opposed, asserting that the bill and taxation notice were served via the firm of Njoroge Regeru & Co. Advocates as directed by a property manager, Bedan Mwangi. Examining the process server's two affidavits of service, the court found them mutually inconsistent and concluded the process server was not candid. Further, the applicant demonstrated that Mwangi had resigned as property manager at the time of the alleged service, and that the advocates actually on record were Lesinko, Njoroge & Gathogo, not Njoroge Regeru & Co. Holding that a party cannot be condemned unheard and that there was no service upon the applicant, the court allowed the application, set aside the ex-parte taxation and the certificate of taxation, referred the bill back to the taxing officer for taxation in the presence of all parties, and awarded the costs of the application to the applicant against the respondent. Judgment delivered at Nairobi on 31st July 2017 by E. O. Obaga, J.

Key legal issues

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01

Whether service of the bill of costs and taxation notice was effected on the applicant

Holding

Service was not effected; the process server's accounts were inconsistent and the wrong firm was served.

Reasoning

The court found the process server not candid: his two affidavits of service gave contradictory accounts, one claiming documents were left at Njoroge Regeru & Co. Advocates as directed by Bedan Mwangi, the other that Mwangi received them at Westlands. The applicant also showed Mwangi had resigned as property manager at the material time, and the advocates then on record were Lesinko, Njoroge & Gathogo, not Njoroge Regeru.

p. 1
02

Whether the ex-parte taxation and certificate of taxation should be set aside

Holding

Yes; both set aside and taxation referred back for inter-partes hearing.

Reasoning

Because there was no service upon the applicant, the applicant was condemned unheard. The court exercised its discretion to set aside the ex-parte taxation and the certificate of taxation issued pursuant to it, and remitted the bill to the taxing officer for taxation in the presence of all parties, with costs of the application to the respondent.

p. 2

Legal principles established

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  • A party cannot be condemned unheard; service must be effected on the party or its advocates on record before ex-parte taxation.

Court orders

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  1. 1.The ex-parte taxation and the certificate of taxation issued pursuant to the ex-parte taxation are set aside
  2. 2.The matter is referred back to the taxing officer for taxation in the presence of all parties
  3. 3.Costs of the application to be borne by the Respondent
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over its own proceedings (ELC 17 of 2015); setting aside of ex-parte taxation and certificate of taxation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ochanda Onguru T/A Ochanda Onguru & Co.Advocates v Airport View Housing Ltd [2017] KEELC 1800 (KLR)", Case Analysis (2017). ELC 17 of 2015 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1800/eng@2017-07-31

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