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ELCDismissed· [2021] KEELC 1785 (KLR)

David Anunda v John Karu (Sued in His Own Capacity and as the Chairman of Kileleshwa Githunguri Road Residents Association) & 2 others [2021] KEELC 1785 (KLR)

Environment and Land Court
29 September 2021
2,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a challenge to Kshs 1.1 million in legal costs because the party skipped a mandatory objection step first.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed a Chamber Summons dated 18th March 2021 before the Environment and Land Court at Milimani seeking enlargement of time under Rule 11(2) of the Advocates Remuneration Order to file a reference against a Taxing Officer's ruling of 21st January 2021, which taxed the Defendants' costs at Kshs 1,114,693.30. The applicant also sought stay of execution of the ruling and certificate of costs, an order that the taxed costs were manifestly excessive and should be set aside, and a re-assessment of costs. The applicant attributed the delay to the non-availability of the taxation ruling despite a request by letter dated 29th January 2021. The Respondent filed a Replying Affidavit sworn by Grace Wangui and a Preliminary Objection, contending that no Notice of Objection to taxation was ever filed within the 14-day period, rendering the application premature and an abuse of process. The court framed three issues: jurisdiction to re-assess costs, tenability of the extension of time, and tenability of the stay. Applying Joreth Limited v Muturi Kigano & Associates Advocates, the court held that although it could re-assess or remit costs on a proper reference, no reference was on file, so it lacked jurisdiction to re-tax. Applying Rule 11(1), it held the Notice of Objection is the foundation of a reference; absent one, the application was premature, stillborn and a nullity ab initio (Macfoy v United Africa Limited). On stay, relying on Co-operative Bank of Kenya Ltd v BIFU, Western College of Arts and Applied Sciences v Oranga and Kenya Shell Ltd v Kibiru, the court held that costs from a dismissed suit are a negative order incapable of being stayed, and no substantial loss was demonstrated. The Chamber Summons was dismissed with costs on 29th September 2021.

Key legal issues

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01

Jurisdiction to re-assess taxed costs absent a reference

Holding

The court lacks jurisdiction to re-tax or refer a Bill of Costs for re-assessment where no reference has been filed; the prayers were mounted in a vacuum.

Reasoning

While acknowledging that on a proper and lawful reference the court has twin responsibilities to re-assess costs or remit them to another Taxing Officer (citing Joreth Limited v Muturi Kigano & Associates Advocates), the court found no reference was on file before it. Without the reference, the prayers for setting aside and re-assessment could not be entertained.

p. 3
02

Legality of the application for extension of time

Holding

The application was premature, stillborn and a nullity ab initio because no Notice of Objection to taxation was filed within 14 days as mandated by Rule 11(1), and none was sought to be regularised.

Reasoning

Rule 11(1) obliges an objecting party to give written notice of disputed items within 14 days; only then does the Taxing Master record reasons, after which a reference may be filed. The Notice of Objection is the foundation of the reference. Applying Macfoy v United Africa Limited, proceedings founded on a void act are incurably bad and collapse.

p. 3
03

Entitlement to stay of execution of the Certificate of Costs

Holding

Stay was refused: costs from a dismissed suit constitute a negative order not susceptible to stay, and the applicant proved no substantial loss.

Reasoning

Relying on Co-operative Bank of Kenya Limited v BIFU (Kantai JA) and Western College of Arts and Applied Sciences v Oranga, the court held there is nothing to execute in a dismissal with costs except costs, which do not lend themselves to stay. Further, under Kenya Shell Limited v Benjamin Karuga Kibiru, substantial loss is the cornerstone of stay, and the applicant deposed to none.

p. 4

Legal principles established

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  • A Notice of Objection to taxation is a mandatory precondition to filing a reference under Rule 11 of the Advocates Remuneration Order
  • Costs arising from a dismissal of a suit (a negative order) are not amenable to an order of stay of execution
  • On a proper reference, the court may re-assess costs itself or remit them to another Taxing Officer as a matter of judicial discretion

Court orders

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  1. 1.The Chamber Summons Application dated 18th March 2021 is dismissed with costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1) and (2)
  • Civil Procedure ActSection 27
  • Court of Appeal RulesRule 75
  • Civil Procedure RulesOrder XLI rule 4

Cases cited (10)

  • JORETH LIMITED V MUTURI KIGANO & ASSOCIATES ADVOCATES
    (2002) eKLR
  • STEEL CONSTRUCTION & PETROLEUM ENGINEERING E A LIMITED V UGANDA SUGAR FACTORY LIMITED
  • D'SOUZA V FERAO
    (1960) E A 602
  • ARTHUR V NYERI ELECTRICITY UNDERTAKING
    (1961) E A 492
  • MACFOY V UNITED AFRICA LIMITED
    (1961) 3 All E.R. 1172
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
  • Western College of Arts and Applied Sciences v Oranga & Others
    (1976-80) 1 KLR
  • Wilson v Church
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (2009)

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, "David Anunda v John Karu (Sued in His Own Capacity and as the Chairman of Kileleshwa Githunguri Road Residents Association) & 2 others [2021] KEELC 1785 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1785/eng@2021-09-29

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