Henry Shikuku Barasa & 2 others (suing as the duly authorized representatives of Matisi Outreach Church v Reuben Fwamba Mbita [2019] KEELC 627 (KLR)
The bottom line
#A Kenyan High Court ruled that only a Rule 11 reference — not a general court application — can challenge a taxing officer's decision on legal costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to set aside a taxing officer's decision otherwise than by a Rule 11 reference
The court has no jurisdiction to entertain an application to set aside orders allowing a bill of costs as drawn; the Advocates (Remuneration) Order is a complete code and any grievance must proceed by reference under Paragraph 11 filed within 14 days
The court adopted the reasoning in Machira v Magugu (as adopted in Keziah Gathoni Supeyo) that the Remuneration Order is a complete code with no provision for invoking the Civil Procedure Rules, and in Doonholm Rahisi Stores that the inherent power under Section 3A cannot be inferred to include jurisdiction to intervene in another judicial officer's special jurisdiction. Such interventionist jurisdiction must be expressly conferred by law. The application was not a Rule 11 reference.
Whether the plaintiffs' explanation for the default warranted setting aside the Deputy Registrar's orders
No. The applicant's counsel did not explain why submissions ordered on 25/8/2019 were never filed; the alleged agreement for an adjournment was not admitted by the defendant; and the explanation for absence from the taxation was insufficient
The court found there was no response to the respondent's averment that counsel had been granted time to file submissions and failed to do so. The supporting affidavit's claim of an agreed 14-day extension was unproven. The court observed that misplaced courtesy by the defendant's counsel could not cure the applicants' default, and on that basis alone the application lacked merit.
Legal principles established
#- The Advocates (Remuneration) Order is a complete code governing taxation; dissatisfaction with a taxing officer's decision can only be ventilated by a reference under Paragraph 11, and the court has no inherent jurisdiction to intervene in the taxing officer's special jurisdiction
- The court will not interfere with taxation except by way of a reference under Rule 11 of the Advocates (Remuneration) Order; interventionist jurisdiction must be expressly conferred by law
- Counsel's failure to file submissions as ordered and to attend the taxation, without sufficient explanation, defeats an application to set aside the taxing officer's orders; excessive courtesy between counsel is unhealthy
Court orders
#- 1.The application dated 13/9/2019 is dismissed with costs
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Section 3A of the Civil Procedure Act; Order 51 Rule 1 Civil Procedure Rules 2010 (invoked by the applicants); the court held it lacked jurisdiction as the Advocates (Remuneration) Order is a complete code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Shikuku Barasa & 2 others (suing as the duly authorized representatives of Matisi Outreach Church v Reuben Fwamba Mbita [2019] KEELC 627 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/627/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.