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ELCPartially AllowedNotice of Motion dated 17/6/2021 (case number not stated in the judgment)· [2021] KEELC 971 (KLR)

Magdalena Alphonce Cheposowor v Cheposupko Lonyareng & 5 others [2021] KEELC 971 (KLR)

Environment and Land Court
18 November 2021
FNFred Nyagaka
2,246 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot be forced to pay taxed legal costs until the taxing officer explains how the amount was calculated.

What this practically means

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Executive summary

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The Applicant, Magdalena Alphonce Cheposowor, moved the Environment and Land Court at Kitale by Notice of Motion dated 17/6/2021 seeking enlargement of time to file a reference out of time against a taxation ruling of 13/4/2021 that allowed the Defendants' bill of costs at Kshs 2,617,800, a stay of that ruling, and reconsideration of contested items in the bill. Her counsel, Fancy Chebet Ngetich, deponed that she received notices of taxation under protest, learned of the ruling later, and on 20/4/2021 requested the taxing master to supply reasons for the taxation, which were never furnished. The Respondents' counsel, Peter Kiarie Ndarwa, opposed the application, contending that counsel was served twice, never filed submissions, and that the applicant was indolent and should not deny the successful party the fruits of judgment. The court framed three issues: extension of time, stay of execution, and the orders to issue. It held that under Paragraph 11(1) and (2) of the Advocates Remuneration Order a reference lies only after the taxing master supplies reasons; since reasons had not been given, the time for filing a reference had not begun to run and extension was premature - the court cannot extend that which has not begun to exist. Distinguishing Governors Baloon Safari Limited, it found any execution premature and stayed execution pending the giving of reasons and the 14-day window thereafter. It directed the Deputy Registrar to furnish the reasons within 14 days, and ordered costs to abide the intended reference.

Key legal issues

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01

Whether time could be extended to file a reference out of time

Holding

The prayer was declined as premature: the reference period had not begun to run because the taxing master had not supplied reasons for the 13/4/2021 taxation.

Reasoning

Paragraph 11(1) and (2) of the Advocates Remuneration Order requires an objector to give notice of objection within 14 days, whereupon the taxing officer must furnish reasons, and only then may the objector, within 14 days of receipt of the reasons, apply to a judge. Since both counsel admitted the reasons had never been supplied, the right of reference had not crystallised and there was nothing for the court to extend.

p. 3
02

Whether execution of the taxation ruling of 13/4/2021 should be stayed

Holding

Stay was granted because any execution before reasons were supplied was premature and would shut the applicant out of fair exhaustion of remedies.

Reasoning

Applying Order 42(6) principles, the court weighed the applicant's interest in being heard against the respondents' right to the fruits of judgment. Since reasons had not been given, the matter had not reached a stage where it could move to the judge; executing before that would deny the party the chance to be heard and exhaust available remedies, so a stay pending the reasons and the 14-day window was the appropriate order.

p. 3

Legal principles established

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  • Under Paragraph 11(1) and (2) of the Advocates Remuneration Order, a reference to a judge can only be filed after the taxing master has supplied reasons for the taxation; before then no reference lies.
  • A court cannot extend time for a step which has not yet arisen or begun to run.
  • Execution of a taxed bill before the taxing master supplies reasons for the taxation is premature and should be stayed.

Court orders

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  1. 1.Application dated 17/6/2021 allowed in part; Prayer 3 (extension of time) declined as premature
  2. 2.An order directing the Deputy Registrar - Kitale High Court to furnish the Applicant with reasons for the ruling dated 13/4/2021 within 14 days from the date of the ruling
  3. 3.Stay of execution of the bill of costs dated 13/4/2021 pending the giving of reasons on the taxing master's decision and the 14-day window thereafter
  4. 4.Costs shall abide by the intended reference

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1) and (2)
  • Civil Procedure RulesOrder 42 rule 6
  • Advocates Remuneration OrderOrder 11(1) and (2) (as cited by respondent's counsel)

Cases cited (2)

  • County Government of Tana River vs Miller & Company Advocates
    (2012) eKLR
  • Governors Baloon Safari Limited vs Skyship Company Limited & Another
    (2020) eKLR
Jurisdiction invoked
Paragraph 11(1) and (2) of the Advocates Remuneration Order and Order 42(6) of the Civil Procedure Rules (inherent discretion of the ELC over its taxing master's taxation)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Magdalena Alphonce Cheposowor v Cheposupko Lonyareng & 5 others [2021] KEELC 971 (KLR)", Case Analysis (2021). Notice of Motion dated 17/6/2021 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/971/eng@2021-11-18

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