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ELCDismissedNotice of Motion dated 17th September 2020· [2021] KEELC 1941 (KLR)

Nderitu & Waturu Associates Advocates v Peter Kagunyu Kiragu [2021] KEELC 1941 (KLR)

High Court of Kenya
24 September 2021
1,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a challenge to a taxed advocates' bill because the objection was filed late with no extension of time sought.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 17th September 2020 by the Respondent/Applicant seeking to set aside the Ruling and orders of Hon. V. Kachuodho, Deputy Registrar, of 19th September 2019, the Certificate of Taxation dated 13th August 2020, and an order for fresh taxation of the Advocates' Bill of Costs dated 19th October 2018, on the ground that the instruction fee on Item 1 was excessive, an application for injunctions being straightforward work warranting about Kshs. 75,000/-. The Applicant/Respondent opposed, contending that the objection was filed out of time under Rule 11 of the Advocates (Remuneration) Order - the ruling was delivered on 19th September 2019 but the Notice of Objection was filed on 8th October 2019, outside the 14-day window - and that no grounds for setting aside the taxation were demonstrated. The court, per L. Gacheru J, found that since the Taxing Master had given reasons in her ruling, a notice of objection seeking reasons was unnecessary, following Samwel Chelule Koech v Kenya Forest Service [2021] eKLR; the operative requirement was an application to the High Court within 14 days under Rule 11(2). Neither step was taken in time, and no extension of time was sought under Rule 11(4) despite the objection being raised. The court held the notice of objection and the application null and void and dismissed the application dated 17th September 2020 with costs to the Applicant/Respondent.

Key legal issues

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01

Compliance with Rule 11 of the Advocates (Remuneration) Order timelines

Holding

The Notice of Objection filed on 8th October 2019 and the application filed on 17th September 2020 were both out of time, and no extension of time was sought, rendering them null and void

Reasoning

The taxing officer's ruling of 19th September 2019 contained reasons, so Rule 11(1) notice was unnecessary; the operative step was an application to the High Court within 14 days under Rule 11(2). The objector filed the notice 19 days after the ruling and the application over a year later. No application under Rule 11(4) to enlarge time was made, even after the point was raised, so the application could not succeed.

p. 2
02

Necessity of a Notice of Objection where reasons were already given

Holding

Since the Taxing Master gave reasons for her decision in the ruling, a notice of objection seeking reasons was unnecessary; the requirement under Rule 11(1) did not arise

Reasoning

Following Samwel Chelule Koech v Kenya Forest Service, where the taxing master's ruling itself contains the reasons, the objector need not give notice in writing to obtain reasons, and omission of the notice is not fatal. The decisive timeline is the 14 days within which to apply to the High Court under Rule 11(2).

p. 2

Legal principles established

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  • Where the Taxing Master has already given reasons for the decision on taxed items, a notice of objection seeking reasons under Rule 11(1) is unnecessary, and the objector must move to the High Court within 14 days under Rule 11(2)
  • Failure to adhere to the 14-day timelines in Rule 11, and failure to seek extension of time, renders the objection and the reference null and void

Court orders

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  1. 1.The Application dated 17th September 2020 is dismissed
  2. 2.Costs of the Application to the Applicant/Respondent

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1), (2), (3), (4)

Cases cited (1)

  • Samwel Chelule Koech vs Kenya Forest Service
    [2021] eKLR
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order

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, "Nderitu & Waturu Associates Advocates v Peter Kagunyu Kiragu [2021] KEELC 1941 (KLR)", Case Analysis (2021). Notice of Motion dated 17th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1941/eng@2021-09-24

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