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ELCPartially AllowedNot stated in the judgment (application dated 13/2/2020)· [2020] KEELC 674 (KLR)

Henry Shikuku Barasa & 2 others v Reuben Fwamba Mbita [2020] KEELC 674 (KLR)

Environment and Land Court
5 November 2020
MNMwangi Njoroge
1,545 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave clients more time to challenge a lawyer's taxed costs, ruling that the objection didn't have to be filed in the main case file.

What this practically means

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Executive summary

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The plaintiffs/applicants, appearing before the Environment and Land Court at Kitale, brought an application dated 13/2/2020 under Rule 11 of the Advocates (Remuneration) Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 of the Civil Procedure Rules. They sought enlargement of time to file a reference against the Deputy Registrar's (taxing officer's) ruling on costs delivered on 9/9/2019, acceptance of their letter of objection, and a stay of execution of that ruling. The respondent opposed, contending the application was fatally defective and should have been raised in the main suit, that the applicants were guilty of laches, and that the taxing master exercised her discretion judiciously. He also lodged a preliminary objection asserting the application offended Section 19 of the Civil Procedure Act and Order 2 of the Civil Procedure Rules and was an abuse of process. The court framed three issues and rejected the preliminary objection, holding that nothing in Rule 11 requires such an application to be filed in the trial file record. On extension of time, the court found the letter of 13/2/2020 was a request for reasons under Rule 11(2), not a reference; the delay flowed from counsel's mistaken application dated 13/9/2019 (dismissed 21/11/2019), filed within seven days of taxation. Applying authorities on indulging litigants for counsel's missteps, the court granted extension of 14 days, stayed execution of the taxed costs pending the reference, and directed that the orders stand automatically vacated if no reference was filed within the timelines of Rule 11(2). No costs order was made.

Key legal issues

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01

Whether the application was fatally defective for not being brought in the main suit

Holding

The preliminary objection failed; neither rule 11 of the Advocates (Remuneration) Order nor rule 11(4) requires the application to be filed in the trial file record.

Reasoning

The court examined rule 11(1) and (2) and rule 11(4) of the Advocates (Remuneration) Order and found nothing stipulating that the chamber summons must be filed in the trial file. Order 42 of the Civil Procedure Rules was also cited in aid of extension of time. Finding no merit in the first limb and no basis in the second limb of the preliminary objection, the court rejected the claim of abuse of process.

p. 2
02

Whether extension of time to file a reference should be granted

Holding

Extension of time was granted under rule 11(4), the delay being attributable to the advocate's mistaken choice of procedure and the applicants having acted promptly.

Reasoning

The letter dated 13/2/2020 was not a reference but a request for reasons under rule 11(2). The delay arose because counsel filed an application dated 13/9/2019 seeking to set aside the taxation, which was dismissed on 21/11/2019. The court noted that application was filed within 7 days of taxation, within the 14-day window, and held that but for counsel's misstep a proper reference would have been filed in time. In the interests of justice, extension was granted.

p. 3

Legal principles established

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  • Rule 11 of the Advocates (Remuneration) Order does not require an objection/reference application to be filed in the trial file record
  • Courts will ordinarily indulge litigants for the missteps of their counsel where the litigant has acted diligently

Court orders

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  1. 1.The time within which the objection to the taxation in the main suit is extended by 14 days with effect from the date of the order
  2. 2.The letter of objection to the taxation dated 13/2/2020 shall be paid for forthwith
  3. 3.The execution of the costs in the main suit is stayed pending the hearing and determination of the reference
  4. 4.The proposed reference shall be filed promptly and within the timelines stipulated in rule 11(2)
  5. 5.If no reference is filed within the time frame set out in the orders, the orders shall stand automatically vacated

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1), (2), (4)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42
  • Civil Procedure Rules 2010Order 2
  • Civil Procedure ActSection 19

Cases cited (3)

  • Joseph Mweteri Igweta -vs- Mukira M’Ethare & Attorney General
    2002 [eKLR]
  • Philip Chemwolo and Mumias Sugar Co Ltd vs Augustine Kubende
    [1986] eKLR
  • Sheikh t/a Hasa Hauliers v Highway Carriers Ltd
    [1988] eKLR
Jurisdiction invoked
Rule 11(4) of the Advocates (Remuneration) Order; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 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, "Henry Shikuku Barasa & 2 others v Reuben Fwamba Mbita [2020] KEELC 674 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 13/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/674/eng@2020-11-05

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