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ELCAllowedNotice of Motion dated 22nd July, 2020 (arising from Kajiado ELC Petition No. 10 of 2017)· [2021] KEELC 910 (KLR)

Mukin Limited v Kenya Electricity Transmission Co.Ltd [2021] KEELC 910 (KLR)

Environment and Land Court
10 November 2021
COChristine Ochieng
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court-style land court ordered KETRACO to pay Kshs 1.87 million plus interest because it ignored a signed settlement and never challenged a costs taxation in time.

What this practically means

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Executive summary

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Mukin Limited, through its advocates, moved the Environment and Land Court by Notice of Motion dated 22nd July 2020 seeking enforcement of a Deed of Settlement dated 7th April 2017, adopted as a consent order on 26th July 2017, under which the Respondent (KETRACO) agreed to settle the Petitioner's legal fees arising from Kajiado ELC Petition No. 10 of 2017 by 13th April 2017, with default interest at 12% per annum. The Petitioner sought payment of Kshs. 1,867,600, the taxed amount of an Advocate-Client Bill of Costs, plus interest. The Respondent opposed, asserting it was never served with the Bill of Costs, did not participate in the taxation, and that no advocate-client relationship with the taxing firm was demonstrated; it also claimed to have paid party-and-party costs. The court, per Christine Ochieng J, framed a single issue: whether the Petitioner was entitled to the orders sought. The court held that the Respondent, having been notified of the taxed amount and having failed to file a reference under Paragraph 11 of the Advocates Remuneration Order, was estopped from denying the taxation. The unvaried consent order bound the Respondent, and its refusal to pay for nearly four years amounted to dishonesty. The application was allowed: payment of Kshs. 1,867,600 with 12% interest from 13th April 2017, default execution within 60 days, and costs to the Respondent.

Key legal issues

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01

Whether the Respondent, having not participated in the taxation, was bound by the Certificate of Taxation

Holding

The Respondent was estopped from denying liability; it never filed a reference under Paragraph 11 of the Advocates Remuneration Order to challenge the taxation and had acquiesced.

Reasoning

The Respondent claimed it was not served with the Advocate-Client Bill of Costs and was not party to the taxation. However, it was duly notified of the taxed amount, never filed a reference to challenge the Certificate of Taxation, and had earlier withdrawn an application to set aside the consent order. The court held that the proper remedy was a Rule 11 reference, and the Respondent's conduct amounted to acquiescence and dishonesty.

p. 2
02

Whether the Deed of Settlement dated 7th April 2017, adopted as a consent order, bound the Respondent to pay the Petitioner's legal fees

Holding

Yes; clause 2 of the Deed of Settlement obligated the Respondent (KETRACO) to settle the Petitioner's legal fees by 13th April 2017, and the consent order was never varied, set aside or appealed.

Reasoning

The court noted that the Deed of Settlement was adopted as a court order on 26th July 2017 and had never been altered or set aside. The Respondent's earlier application to set aside the consent order was withdrawn. The court found the Respondent was attempting to extricate itself from a duly signed Deed of Settlement and had offered no plausible reason for non-compliance for nearly four years.

p. 2

Legal principles established

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  • A party aggrieved by a taxation must challenge it by a reference under Paragraph 11 of the Advocates Remuneration Order within the prescribed time; failure to do so, coupled with acquiescence, estops the party from refusing to pay the taxed costs.
  • Failure to adhere to the time limits in Rule 11 of the Advocates Remuneration Order renders an application challenging taxation incompetent.

Court orders

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  1. 1.An order directing the Respondent to pay the Applicant (through its advocates on record) the sum of Kshs. 1,867,600/=
  2. 2.Interest on the sum of Kshs. 1,867,600/= at the rate of 12% per annum from 13th April 2017 until payment in full
  3. 3.In default of payment within sixty (60) days from the date of the judgment, execution to issue forthwith
  4. 4.Costs of the application to be borne by the Respondent

Authorities

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Legislation

  • Environment and Land Court ActSections 14 and 19
  • Civil Procedure ActSections 1A, 1B, 3A, 26, 27, 28, 38 and 63(e)
  • Civil Procedure RulesOrder 51(1)
  • Advocates Remuneration OrderParagraph 11
  • Advocates Actnot specified

Cases cited (3)

  • Twiga Motor Limited vs. Hon. Dalmas Otieno Anyango
    [2015] eKLR
  • Vishisht Talwar vs. Anthony Thuo Kanai t/a A. Thuo Kanai Advocates
    [2014] eKLR
  • Machira & Co. Advocates vs. Arthur K. Magugu & Another
    CA 199/2002 [2012] eKLR
Jurisdiction invoked
Sections 14 and 19 of the Environment and Land Court Act, 2011; Sections 1A, 1B, 3A, 26, 27, 28, 38 and 63(e) Civil Procedure Act; Order 51(1) 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, "Mukin Limited v Kenya Electricity Transmission Co.Ltd [2021] KEELC 910 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd July, 2020 (arising from Kajiado ELC Petition No. 10 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/910/eng@2021-11-10

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