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ELCDismissedChamber Summons dated 19th July 2017· [2018] KEELC 1922 (KLR)

Thomas K’bahati t/a K’bahati & Co. Advocates v Janendra Raichand Shah [2018] KEELC 1922 (KLR)

High Court of Kenya
17 September 2018
CYC. Yano
1,645 words in judgment
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The bottom line

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A client who waited too long to challenge a legal fees bill lost his case because Kenya's 14-day deadline for tax references is strictly enforced.

What this practically means

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Executive summary

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The applicant, Janendra Raichand Shah, moved the High Court at Mombasa by Chamber Summons dated 19th July 2017 under paragraph 11(2) of the Advocates Remuneration Order and sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the Certificate of Taxation issued on 5th May 2017, to stay execution of the certificate arising from the Deputy Registrar's taxation ruling of 28th April 2017, and to have the Respondent's advocate-client Bill of Costs taxed afresh. He contended that the Respondent firm, K'Bahati and Company Advocates, did not exist in 2005 when the underlying suit was filed, having then been handled by Lumumba Mumma and Kaluma Advocates, and that the taxed sum of about Kshs. 2,212,333 was unjustified and not taxed per scale. The Respondent opposed through grounds of opposition, contending inter alia that the court lacked jurisdiction and that clause II of the Order conferred no power to stay execution of an advocate-client certificate of costs. The court, C. Yano J, framed two issues: the competence of the application as a reference, and whether the taxation and certificate should be set aside. Relying on Machira & Co Advocates v Magugu and Gacau Kariuki & Co. Advocates v Allan Mbugua Ng'ang'a, the court held that grievances against a taxing officer's decision must be raised by reference under paragraph 11, filed within 14 days. The application, filed on 19th July 2017 without any extension of time, was incurably incompetent. It was dismissed with costs to the Respondent on 17th September 2018.

Key legal issues

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01

Competence of an application challenging taxation filed outside the statutory time for a reference

Holding

The application, though in the nature of a reference, was filed out of time and without leave to extend time, and was therefore incurably incompetent

Reasoning

Paragraph 11(2) of the Advocates Remuneration Order requires an objector to apply to a judge by Chamber Summons within 14 days of receipt of the taxing officer's reasons. The taxing decision was made on 28th April 2017, the notice of objection was filed on 11th May 2017, and the application was filed on 19th July 2017. No request for enlargement of time was made, so the court could not consider one, and the application failed statutorily.

p. 3
02

Correct procedure for challenging a decision of the Taxing Officer

Holding

The only recourse for a person aggrieved by a taxation decision is a reference under paragraph 11 of the Advocates Remuneration Order

Reasoning

Relying on Machira & Co Advocates v Magugu and Gacau Kariuki & Co. Advocates v Allan Mbugua Ng'ang'a, the court held that prayers to set aside a certificate of taxation and stay execution portend a challenge to the taxing officer's decision and must be urged in a reference under paragraph 11, not by a general application to set aside.

p. 2

Legal principles established

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  • Any complaint about a decision of a taxing officer, whether on a point of law or on the taxation of any item, must be ventilated by way of a reference to a judge under paragraph 11 of the Advocates Remuneration Order
  • Where a specific procedure is provided for addressing a grievance, that procedure should be strictly complied with, including the 14-day time limit for filing a reference under paragraph 11(2)

Court orders

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  1. 1.The Application dated 19th July, 2017 is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), 11(2), 11(4)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (2)

  • Machira & Co Advocates – v- Magugu
    (2002) 2 EA 428
  • Gacau Kariuki & Co. Advocates –v- Allan Mbugua Ng'ang'a
    (2012) eKLR
On appeal from
null
null
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Thomas K’bahati t/a K’bahati & Co. Advocates v Janendra Raichand Shah [2018] KEELC 1922 (KLR)", Case Analysis (2018). Chamber Summons dated 19th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1922/eng@2018-09-17

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