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ELCDismissedELC No. 7 of 2017· [2018] KEELC 5 (KLR)

Muli Musembi & another v Ruth Katunga Isika [2018] KEELC 5 (KLR)

Environment and Land Court
14 December 2018
CMC. G. Mbogo
1,203 words in judgment
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The bottom line

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A Kenyan court refused to extend time for challenging taxed legal costs because the applicants attached no draft reference and explained nothing about missing the taxation.

What this practically means

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Executive summary

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Before the court was a chamber summons application dated 4th May, 2018, brought under sections 3, 5, 94 and 95 of the Civil Procedure Act and Rules 11(2) and (4) of the Advocates Remuneration Order, seeking stay of execution of the taxing officer's ruling and reasons for taxation dated 4/4/2018, enlargement of time, and leave to file a reference out of time, with the reference deemed properly filed. The Applicants, through the supporting and supplementary affidavits of Musembi Muli, argued that the taxing master applied wrong principles, that no notice to show cause was served, that a preliminary objection was pending, and that the taxation notice referenced a different case (HCCA No. 303 of 2007) rather than the present ELC No. 7 of 2017. The Respondent, through advocate Francis N. Sila, opposed the application as frivolous and an abuse of process, contending the Applicants' advocate was served with the taxation notice but failed to attend court without explanation, that no draft reference was annexed, and that execution of party and party costs did not require a decree. Both sides filed written submissions; the Applicant relied on the Cheruiyot and Waigwa authorities without supplying copies to the court. The court agreed with the Respondent that the principal prayer was enlargement of time and leave to file the reference. It found that no draft reference had been annexed, leaving the court to guess the items objected to, and that the Applicants' advocate gave no explanation for absenting himself from the taxation. Concluding that insufficient reasons had been shown, the court dismissed the application with costs to the Respondent.

Key legal issues

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01

Sufficiency of reasons for filing a reference out of time

Holding

The Applicants failed to show sufficient reasons; the application was dismissed.

Reasoning

The court noted that no draft reference was annexed, leaving the court to guess the items objected to, and that the Applicant's advocate, though served with a taxation notice, attended neither the taxation nor the argument of the preliminary objection without explanation. Without these, enlargement of time could not be justified.

p. 2
02

Stay of execution pending reference

Holding

Refused for lack of merit as the main prayer (leave to file the reference out of time) failed.

Reasoning

Since the court declined to enlarge time and deem the reference properly filed, the ancillary prayer for stay of execution of the taxing officer's ruling could not stand; the application in its entirety lacked merit and was dismissed with costs.

p. 2

Legal principles established

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  • An applicant seeking leave to file a reference out of time must annex a draft copy of the reference showing the items objected to and explain any failure to attend the taxation.

Court orders

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  1. 1.The application dated 4th May, 2018 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure Actsections 3, 5, 94, 95
  • Advocates Remuneration OrderRule 11(2) and (4)

Cases cited (2)

  • Rubo Kim Kimngelih Arap Cheruiyot Vs Peter Kiprop Rotich
    Eldoret HCCC No. 133 of 1993
  • S. Gichuki Waigwa Vs Nina Manne Ltd
    [2005] eKLR
Jurisdiction invoked
Sections 3, 5, 94 and 95 of the Civil Procedure Act and Rule 11(2) and (4) of the Advocates Remuneration Order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muli Musembi & another v Ruth Katunga Isika [2018] KEELC 5 (KLR)", Case Analysis (2018). ELC No. 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/5/eng@2018-12-14

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