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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 999 (KLR)

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)

Environment and Land Court
4 October 2018
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, whose adverse possession suit over LR No. 5438/2 was dismissed for non-attendance on 18 February 2015, moved the court by application dated 12 June 2018 seeking enlargement of time to file a reference out of time against the taxing officer's decision, contending their erstwhile advocates never informed them the bill of costs had been taxed and that the fees awarded were exaggerated. The defendant opposed, citing inordinate delay, indolence, and failure to comply with the Rule 11 notification and reference procedure of the Advocates (Remuneration) Order. Examining the record, the court found that a preliminary objection raised by the applicants' counsel against the introduction of a valuation report was argued, with ruling reserved for 9 June 2017, but no such ruling was delivered. Instead, a ruling taxing the whole bill was delivered on 18 January 2018 with no evidence that counsel on record were notified. The certificate of costs dated 30 January 2018 followed, and a proclamation of the applicants' goods was made. Holding that the taxation was procedurally irregular — no party should be condemned unheard — the court exercised its inherent jurisdiction under Section 3A of the Civil Procedure Act rather than the Rule 11 reference mechanism. It set aside the taxing officer's ruling of 18 January 2018 and the certificate of costs dated 30 January 2018, and remitted the bill to the taxing officer to first rule on the preliminary objection and then tax the bill inter partes. The applicants, not being at fault, were given no orders as to costs, and the auctioneer's out-of-pocket expenses were to be reimbursed by the defendant.

Key legal issues

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01

Irregular taxation without notice to the applicants and without determination of the preliminary objection

Holding

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.

Reasoning

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.

p. 2
02

Jurisdiction to intervene notwithstanding the Rule 11 reference procedure

Holding

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.

Reasoning

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.

p. 2
03

Delay and attribution of fault

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Set aside the ruling of the taxing officer made on 18 January 2018
  2. 2.Set aside the certificate of costs dated 30 January 2018
  3. 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. 4.Make no orders as to the costs of the application
  5. 5.Direct that the auctioneer be reimbursed by the defendant/respondent any out of pocket expenses incurred, but not any other fees

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1), (2) and (3)
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 3A
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

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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, "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.