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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to re-assess taxed costs absent a reference
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.
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.
Legality of the application for extension of time
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.
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.
Entitlement to stay of execution of the Certificate of Costs
Stay was refused: costs from a dismissed suit constitute a negative order not susceptible to stay, and the applicant proved no substantial loss.
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.
Legal principles established
#- 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
#- 1.The Chamber Summons Application dated 18th March 2021 is dismissed with costs
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order (2009)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.