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ELCDismissedJudicial Review No. 3 of 2017· [2020] KEELC 636 (KLR)

Republic v District Commissioner – Makueni ; Joseph Mutuse Nzuve & 2 others (Interested Parties) Ex-Parte Cyrus Muli Kola (as legal representative of Kola Matolo alias Kula Matolo) [2020] KEELC 636 (KLR)

Environment and Land Court
19 November 2020
CMC. G. MBOGO
2,995 words in judgment
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The bottom line

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A Kenyan court threw out a bid to overturn a Kshs.159,703 costs ruling because the party skipped taxation and its new lawyers failed to follow the required procedure.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the Interested Parties' notice of motion dated 1st October 2019. The Interested Parties sought leave for the firm of Manthi Masika & Co. Advocates to come on record in place of J.A Makau & Co. Advocates, and an order setting aside the Taxing Master's ruling of 17th April 2019, by which a Bill of Costs was taxed at Kshs.159,703/= in favour of the Ex-parte Applicant, on the ground that the taxation proceeded without service of a taxation notice, denying them a fair hearing under Article 50(1) of the Constitution. The Ex-parte Applicant opposed, producing an affidavit of service showing that the taxation notice was served on the Interested Parties' then advocates on record, J.A Makau & Co. Advocates, on 20th February 2019, and contending that the incoming firm had not served the outgoing firm as Order 9 Rule 9(a) and (b) required and that any objection lay under Rule 11 of the Advocates (Remuneration) Order. The court framed two issues: whether the incoming firm was properly on record, and whether the Interested Parties were served with the taxation notice, hearing notice, ruling and decree. The court held that the incoming firm was never served on the outgoing firm and thus never came on record, and that service of the taxation notice was duly effected on the advocates on record. The Interested Parties, having chosen not to attend taxation, could not claim to have been condemned unheard. The application was dismissed with costs to the Ex-parte Applicant.

Key legal issues

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01

Whether the incoming firm of advocates was properly on record under Order 9 Rule 9(a) and (b) of the Civil Procedure Rules

Holding

The firm of Manthi Masika & Co. Advocates was not properly on record because it failed to serve the outgoing firm, J.A Makau & Co. Advocates, and therefore could not prosecute the application.

Reasoning

Judgment had been delivered on 13th December 2017 with J.A Makau & Co. Advocates on record for the Interested Parties. Even though that firm indicated it had no instructions when served with the taxation notice, it remained on record. Order 9 Rule 9(a) and (b) required the incoming firm to serve it with the application. No evidence of such service existed, so the new firm never came on record and the application was incompetent.

p. 4
02

Whether the Interested Parties were served with the taxation notice and whether the taxation ruling of 17th April 2019 was irregularly obtained

Holding

The Interested Parties were served with the taxation notice through their advocates on record as shown by the affidavit of service sworn on 26th March 2019; the taxation ruling was regular and could not be set aside.

Reasoning

The affidavit of service sworn on 26th March 2019 and filed on 27th March 2019 showed service of the taxation notice on J.A Makau & Co. Advocates, who accepted a copy but declined service claiming no instructions. The Interested Parties chose not to attend taxation on 27th March 2019. Having been afforded the chance to be heard, they could not claim they were condemned unheard; their remedy, if any, was an objection under Rule 11 of the Advocates (Remuneration) Order.

p. 4

Legal principles established

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  • A party who has been afforded the opportunity to be heard and chooses not to exercise that right cannot later claim to have been condemned unheard.
  • Where advocates remain on record, service of a taxation notice upon them is service upon the client; the client who chooses not to attend taxation must resort to Rule 11 of the Advocates (Remuneration) Order.

Court orders

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  1. 1.The Interested Parties' notice of motion dated 1st October 2019 is dismissed with costs to the Ex-parte Applicant.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 22 Rule 19(2)
  • Civil Procedure RulesOrder 9 Rule 9(a) and (b)
  • Advocates (Remuneration) OrderRule 11(1)-(4)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (1)

  • Ms. Sharriff & Co. Advocates vs. Omari Mbwana Zonga
    [2020] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 22 Rule 19(2) 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, "Republic v District Commissioner – Makueni ; Joseph Mutuse Nzuve & 2 others (Interested Parties) Ex-Parte Cyrus Muli Kola (as legal representative of Kola Matolo alias Kula Matolo) [2020] KEELC 636 (KLR)", Case Analysis (2020). Judicial Review No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/636/eng@2020-11-19

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