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ELCDismissedNotice of Motion dated 11th February 2019 (ELC at Nakuru/Nyahururu)· [2019] KEELC 1090 (KLR)

Samuel Waiya Githukurio v Stephen Mungai Waita [2019] KEELC 1090 (KLR)

Environment and Land Court
29 October 2019
MOM.C. Oundo
3,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A law firm's challenge to a taxed bill of costs failed because it was filed four months late without the court's permission to file out of time.

What this practically means

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Executive summary

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This was a reference by the Plaintiff under paragraph 11(1) and (2) of the Advocates Remuneration Order challenging the Deputy Registrar's ruling of 22nd October 2018 taxing the Defendant's Bill of Costs (dated 17th May 2017) at approximately Ksh 196,595 following the discontinuation of the Plaintiff's land suit with costs to the Defendant. The Applicant attacked the instruction fee in item 1, the getting up fee in item 2, and items 6, 11, 12, 13, 18, 20 and 22, seeking that the ruling be set aside and the bill re-taxed. The Respondent opposed, contending among other things that the reference was fatally defective for non-compliance with paragraph 11, which requires a party to give notice to the taxing officer and obtain reasons before filing a reference within 14 days. The court framed two issues: whether the reference was properly before the court, and whether it was filed within time. On the first, applying National Oil Corporation v Real Energy Limited and Kipkorir, Titoo & Kiara, the court held there is no magic in requesting reasons where the ruling itself contains them, so the reference was properly filed. On the second, however, the court held that since the reasons were discernible from the 22nd October 2018 ruling, time ran from delivery of the ruling; the reference filed on 11th February 2019 was four months late, and no leave for extension was sought under Rule 11(4). Following Evans Thiga Gaturu v Kenya Commercial Bank, the reference was struck out with costs.

Key legal issues

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01

Compliance with Rule 11(2) - requirement to request reasons before filing a reference

Holding

Substantial compliance suffices; where reasons are contained in the ruling, failure to request reasons does not render the reference defective

Reasoning

The court agreed with National Oil Corporation v Real Energy Limited that there is no magic in requiring the taxing officer to furnish reasons before a reference. The ruling of 22nd October 2018 itself contained the reasons, and Kipkorir, Titoo & Kiara establishes that substantial compliance with Rule 11(2) is enough. The reference was therefore properly filed and not defective for want of a request for reasons.

p. 4
02

Time limit for filing a reference under Rule 11 and extension under Rule 11(4)

Holding

The reference filed 4 months after the ruling was out of time; time ran from the date of the ruling since the reasons were discernible from it, and the Applicant never sought leave under Rule 11(4)

Reasoning

Although the Applicant's notice of objection was filed within an enlarged period by consent, no such enlargement covered the reference itself. Reasons were discernible from the 22nd October 2018 ruling, so time ran from delivery of that ruling. Following Evans Thiga Gaturu, a party preferring a late reference after the 14-day lapse is bound to apply for extension of time under Rule 11(4), which the Applicant did not do.

p. 4

Legal principles established

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  • Where the reasons for a taxing officer's decision are contained in the ruling itself, a party need not formally request reasons before filing a reference; the ruling containing reasons satisfies Rule 11(2)
  • Where reasons are discernible from the taxing master's ruling, time for filing a reference begins to run from the date the ruling is delivered; a reference filed late without leave under Rule 11(4) is liable to be struck out

Court orders

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  1. 1.The Chamber Summons dated 11th February 2019 is struck out with costs

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), (2), (3), (4)
  • Advocates Remuneration OrderSchedule 6, Section 1(b), Section 2(ii), Paragraph 4, Paragraph 9

Cases cited (7)

  • Elijah Momanyi p/a Anassi Momanyi & Co Advocates vs Bartera Maiyo
    [2006] eKLR
  • Metro Petroleum Limited vs Onyango Oloo & Co Advocates
    [2016] KLR / [2016] eKLR
  • Rogan Kamper & Grosvenor
    [1989] KLR
  • Joreth Ltd vs Kigano & Associates
    Civil Appeal No. 66 of 1999
  • Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board
    Nairobi Civil Appeal No. 220 of 2004
  • National Oil Corporation Limited v Real Energy Limited & another
    [2016] eKLR
  • Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited
    [2012] eKLR
On appeal from
null
null
Jurisdiction invoked
Paragraph 11(1) & (2) of the Advocates Remuneration Order and all other enabling provisions of the law

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, "Samuel Waiya Githukurio v Stephen Mungai Waita [2019] KEELC 1090 (KLR)", Case Analysis (2019). Notice of Motion dated 11th February 2019 (ELC at Nakuru/Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1090/eng@2019-10-29

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