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ELCDismissedChamber Summons Application dated 7th July 2021, Murang'a· [2021] KEELC 794 (KLR)

Mbiyu Mwaura v Thomas Ngarachu Ngugi & 5 others [2021] KEELC 794 (KLR)

Environment and Land Court
25 November 2021
2,941 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 dismissed an advocate's challenge to a taxed bill of costs because he filed his objection late without following mandatory procedural rules.

What this practically means

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Executive summary

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The Applicant advocate sought, by Chamber Summons dated 7th July 2021 under Section 11 of the Advocates Act, to set aside the taxing master's taxation of 14th June 2021 of a Bill of Costs arising from costs awarded in Murang'a E.L.C. No. 204 of 2017, in which a bill of Kshs. 1,304,106.00 was taxed down to Kshs. 172,950.33, and to have the costs assessed or remitted with directions. The Respondents opposed, contending lack of jurisdiction and non-compliance with Rule 11 of the Advocates Remuneration Order requiring a reference within 14 days. The Court held it had jurisdiction over costs under Section 13 of the Environment and Land Court Act, but found the application was filed 23 days after the ruling without a notice of objection or plausible explanation for the delay, with counsel present at delivery of the ruling. Relying on the mandatory nature of Rule 11 and authority that Article 159 and the Oxygen principles do not excuse disregard of procedural timelines, the Court declined to excuse the delay. On the merits, it upheld the taxing master's finding that the Plaint disclosed no value of the subject matter, holding that submissions are not pleadings or evidence and cannot supply the value, and that the 2014 Remuneration Order could not apply to instructions given on 11th June 2013. The application was dismissed entirely with costs to the Respondents.

Key legal issues

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01

Jurisdiction of the ELC over taxation references

Holding

The Court has jurisdiction over costs under Section 13(7) of the ELC Act

Reasoning

The Respondents objected to jurisdiction, but the Court held Section 13(7) empowers it to grant any relief including costs, read with sub-section 4, so it could determine issues on costs.

p. 2
02

Compliance with Rule 11 procedure and timelines

Holding

The Applicant failed to file a proper reference within 14 days and gave no plausible reason for the delay

Reasoning

Rule 11 requires notice within 14 days and an application within 14 days of reasons. Counsel was present at delivery of the ruling on 14th June 2021; the application was filed 23 days later. No evidence of attempts to obtain a certified copy was given, and rules of procedure cannot be overridden by Article 159.

p. 3
03

Whether the Taxing Master erred in principle in valuing the subject matter

Holding

The Taxing Master rightly found the Plaint disclosed no value of the subject matter; submissions cannot supply the value

Reasoning

The suit was not a monetary claim and the Plaint did not state a value. Submissions are not pleadings or evidence, and the Applicant did not explain the basis of the suggested figure. The 2014 Remuneration Order could not apply since instructions were given on 11th June 2013.

p. 4

Legal principles established

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  • The ELC has jurisdiction to determine issues on costs under Section 13 of the ELC Act
  • A party objecting to a taxing master's decision must comply with the mandatory procedure in Rule 11 of the Advocates Remuneration Order
  • Submissions do not constitute pleadings or evidence for ascertaining the value of subject matter
  • Delay even for a day is delay and must be explained

Court orders

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  1. 1.The Applicant's Chamber Summons Application dated 7th July 2021 is dismissed entirely with costs to the Respondents
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Mbiyu Mwaura v Thomas Ngarachu Ngugi & 5 others [2021] KEELC 794 (KLR)", Case Analysis (2021). Chamber Summons Application dated 7th July 2021, Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/794/eng@2021-11-25

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