Wilson Kiprono Tuei & 3 others v Samwel Chelule Rodah Cherptich Koech) (Sued as Administrators of the Estate of Cheruiyot Arap Koech) [2018] KEELC 999 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an advocate's fee taxation done without notifying the other side, confirming no one can be condemned unheard.
What this practically means
#Executive summary
#Key legal issues
#Irregular taxation without notice to the applicants and without determination of the preliminary objection
The ruling of 18 January 2018 taxing the whole bill, without first ruling on the preliminary objection and without notifying counsel, was irregular and had to be set aside.
The court found that counsel raised a preliminary objection to the valuation report; the matter was argued and ruling reserved for 9 June 2017, but instead of that ruling, a ruling on the whole bill was delivered on 18 January 2018 with no evidence counsel were notified. The applicants expected an inter partes process. Natural justice required a ruling on the preliminary objection first, then inter partes taxation.
Jurisdiction to intervene notwithstanding the Rule 11 reference procedure
The court invoked its inherent jurisdiction under Section 3A of the Civil Procedure Act rather than confine the parties to the Rule 11 reference mechanism, because the taxation itself was procedurally flawed.
Rule 11 contemplates a reference within 14 days against a taxing officer's decision where taxation proceeded smoothly. Here there were procedural irregularities — no notice of the ruling and no ruling on the preliminary objection — so the court could not sit on its hands and had to intervene under its inherent powers to secure the ends of justice.
Delay and attribution of fault
The inordinate delay in bringing the application was attributable to the erstwhile advocates and the procedural failures, not to the applicants; therefore they should not bear the costs or the auctioneers' costs.
The applicants learned of the taxation only in March 2018 after a proclamation of their goods; there was no evidence counsel were notified of the ruling delivery. Since the problem was not of the parties' making, the applicants were not condemned to pay costs of the application or the auctioneer's fees, though the auctioneer acting in good faith was to be reimbursed out-of-pocket expenses by the respondent.
Legal principles established
#- Where a taxation was conducted irregularly without notice to the other party, the court will exercise its inherent jurisdiction to ensure taxation is conducted in accordance with proper procedure.
- No party should be condemned without being given an opportunity to be heard, including in taxation proceedings.
Court orders
#- 1.Set aside the ruling of the taxing officer made on 18 January 2018
- 2.Set aside the certificate of costs dated 30 January 2018
- 3.Direct the taxing officer to first make a ruling on the preliminary objection raised, and after making the ruling, proceed to tax the bill of costs inter partes
- 4.Make no orders as to the costs of the application
- 5.Direct that the auctioneer be reimbursed by the defendant/respondent any out of pocket expenses incurred, but not any other fees
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Cap 21 (inherent jurisdiction), notwithstanding that the application was brought under Rule 11 of the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Kiprono Tuei & 3 others v Samwel Chelule Rodah Cherptich Koech) (Sued as Administrators of the Estate of Cheruiyot Arap Koech) [2018] KEELC 999 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/999/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.