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ELCStruck OutNotice of Motion dated 6th September 2021· [2021] KEELC 1644 (KLR)

Aneriko W. Simiyu v Redemptor N. Simati [2021] KEELC 1644 (KLR)

High Court of Kenya
23 September 2021
BOBoaz N. Olao
617 words in judgment
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The bottom line

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A Kenyan court struck out an application challenging legal fees taxation because the applicant used the wrong procedure—references, not review, are required.

What this practically means

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Executive summary

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The applicant, aggrieved by the Deputy Registrar's ruling of 30th August 2021 taxing two Bills of Costs dated 8th November 2020 and 10th May 2021 (assessing Kshs. 73,710, which he termed onerous, excessive and unjustifiable), moved the court by Notice of Motion dated 6th September 2021 under Sections 3, 3A and 63(1) of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules, seeking review of the taxing decision and setting aside of the whole ruling. Boaz N. Olao J observed that under Paragraph 11 of the Advocates (Remuneration) Order, a party objecting to a taxing officer's decision must, within 14 days, give notice in writing of the objection and, if unsatisfied with the reasons, file a reference to the Judge. The applicant had filed no reference challenging the ruling of taxing officer Hon. E. N. Mwenda, but instead invoked the court's inherent jurisdiction through review - a route the court held was not the proper procedure. Relying on the Court of Appeal's decision in Machira & Company Advocates v Arthur K. Magugu (2012 eKLR), which held that grievances against taxation decisions are ventilated through a reference under Rule 11 to a Judge in Chambers, the court found there was no proper application before it and struck out the Notice of Motion on 23rd September 2021. No costs order was made.

Key legal issues

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01

Proper procedure for challenging a taxation decision

Holding

Review under Order 45 is not the proper procedure; the party must file a reference to the Judge under Paragraph 11 of the Advocates (Remuneration) Order within 14 days

Reasoning

Paragraph 11 of the Advocates (Remuneration) Order requires a party objecting to a taxing officer's decision to give notice in writing within 14 days and, if unsatisfied with the reasons, file a reference to the Judge. The applicant did not file any reference but invoked the court's inherent jurisdiction through review. Following Machira & Company Advocates v Arthur K. Magugu, this is not the proper mode of ventilating such a grievance.

p. 2

Legal principles established

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  • Grievances against a taxing officer's decision must be ventilated by way of a reference under Rule 11 of the Advocates (Remuneration) Order, not by way of review under Order 45 of the Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion dated 6th September 2021 is struck out

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(1)
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Advocates (Remuneration) OrderParagraph 11

Cases cited (1)

  • Machira & Company Advocates v Arthur K. Magugu
    2012 eKLR
On appeal from
Deputy Registrar (Taxation)
Bills of Costs dated 8th November 2020 and 10th May 2021
Jurisdiction invoked
Sections 3, 3A and 63(1) of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules (invoked by the applicant); Paragraph 11 of the Advocates (Remuneration) Order as the proper route

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, "Aneriko W. Simiyu v Redemptor N. Simati [2021] KEELC 1644 (KLR)", Case Analysis (2021). Notice of Motion dated 6th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1644/eng@2021-09-23

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