Addax Kenya Limited v National Environmental Management Authority & another [2017] KEELC 2539 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural propriety of the application
The application should have been brought under paragraph 11(4) of the Advocates Remuneration Order by Chamber Summons, and should also have sought leave to give notice of objection under paragraph 11(1), but these were non-fatal procedural technicalities.
Paragraph 11 of the Advocates Remuneration Order prescribes the procedure for objecting to a taxing officer's decision and for enlarging time. The 2nd Respondent cited wrong provisions and omitted a prayer for a notice of objection. The court held that Article 159(2)(d) of the Constitution enjoins it to dispense justice without undue regard to procedural technicalities, so both defects were disregarded in favour of substantive justice.
Extension of time to file a reference
Extension of time was warranted because the taxing officer's ruling was not made available to the 2nd Respondent timeously; the file was in the typing pool and the copy of the ruling was only received on 10th June 2016.
The court found the ruling was made in the 2nd Respondent's absence, was handwritten and took time to be typed and signed, and the certificate of taxation was not signed until 9th June 2016. The 2nd Respondent had written for a copy of the ruling on 2nd April 2016. It could not file a reference without the ruling. The subsequent delay of about 20 days, though unexplained, was not inordinate.
Stay of execution of taxed costs
A partial stay of execution was granted for Kshs. 7,653,999.33, conditional on the 2nd Respondent depositing that sum in an interest-earning joint bank account as security.
The Appellant had already filed for execution of Kshs. 9,653,999.33 and would proceed absent a stay. The amount was substantial and recovery from the Appellant in case of success on the reference was uncertain, so substantial loss was likely. However, the 2nd Respondent's own submission that the bill should have been taxed at about Kshs. 2,000,000 meant a stay of the whole sum was unjustified, and security was imposed as a condition.
Legal principles established
#- Failure to cite the correct provisions of law or bringing an application in the wrong form is not fatal, given the constitutional command to disregard procedural technicalities.
- Where a party has valid grounds for extension of time to file a reference under paragraph 11(2) of the Advocates Remuneration Order, the court may, on its own motion, extend time for filing a notice of objection under paragraph 11(1).
- Delay of about 20 days after receipt of the taxing officer's ruling, though unexplained, was not inordinate in the circumstances.
- The court is enjoined to order security as a condition for granting a stay of execution.
Court orders
#- 1.The 2nd Respondent is granted leave to file a notice of objection to taxation and a reference within 21 days from the date hereof
- 2.A stay of execution for part of the taxed costs in the sum of Kshs. 7,653,999.33 pending the filing and determination of the intended reference or further orders of the court, subject to the deposit order
- 3.The 2nd Respondent shall deposit the sum of Kshs. 7,653,999.33 in an interest earning bank account in the joint names of the advocates for the Appellant and the advocates for the 2nd Respondent within 21 days as security pending the hearing of the intended reference
- 4.The costs of the application shall be in the intended reference
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates Remuneration Order and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Addax Kenya Limited v National Environmental Management Authority & another [2017] KEELC 2539 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2539/eng@2017-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.