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ELCDismissedChamber Summons dated 16th December 2019 (arising from ELC No. 291 of 2018)· [2021] KEELC 2299 (KLR)

Furaha Eugenes v Jomo Kenyatta University of Agriculture and Technology [2021] KEELC 2299 (KLR)

High Court of Kenya
22 July 2020
3,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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JKUAT's challenge to a Kshs.621,817 legal fee award failed because its lawyers filed the objection 53 days late without the court's permission.

What this practically means

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Executive summary

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This was a chamber summons brought by the defendant (Jomo Kenyatta University of Agriculture and Technology), through M/s Lutta & Co. Advocates, seeking to vary or set aside a Deputy Registrar's ruling of 23rd October 2019 taxing the respondent's bill of costs, to have the bill re-taxed before a different taxing master, or alternatively for the court itself to re-tax the bill. The underlying suit (ELC No. 291 of 2018), claiming USD 2,138,331.00 in accrued rent, was withdrawn on 10th April 2019 after the court upheld a preliminary objection based on res judicata following a Rwandan judgment. The taxing officer pegged instruction fees at Kshs.621,817.22 using the Rwandan judgment amount rather than the pleaded claim. The respondent opposed, raising a preliminary objection that the reference was filed 53 days out of time without leave under Rule 11(4) of the Advocates (Remuneration) Order, and further that the decretal amount had been satisfied. The court framed three issues: timeliness of the reference, error in pegging instruction fees, and error on folios. It held the reference incompetent, being filed out of time with no explanation and no leave sought, applying Governors Balloons Safaris where a 48-day delay was fatal. Nonetheless, the court went on to find no error of principle: the taxing officer properly used the Rwandan judgment amounts since the suit was withdrawn at a preliminary stage, and did not err on folios. The application was dismissed with costs to the respondents.

Key legal issues

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01

Timeliness and competence of the reference under Rule 11

Holding

The reference was incompetent, having been filed 53 days after the ruling without leave

Reasoning

Rule 11 requires notice of objection within 14 days of the decision and a chamber summons within 14 days of receipt of reasons. The applicant filed the reference 53 days after the ruling of 23rd October 2019. Although the taxing officer replied that her reasons were contained in the ruling itself, the applicant never sought enlargement of time under Rule 11(4). Following Governors Balloon Safaris, the delay rendered the reference fatally incompetent.

p. 4
02

Whether the taxing officer erred in principle on instruction fees

Holding

No error; the taxing officer properly used the Rwandan judgment amount rather than the pleaded claim

Reasoning

The suit was withdrawn at a preliminary stage and never proceeded to full hearing. The taxing officer noted the subject matter had been heard and determined by a Rwandan court and used the amounts awarded there to calculate instruction fees. Applying First American Bank and Joreth Ltd, the court found she took into account relevant factors and did not err in law or principle.

p. 4
03

Folios in items 2 and 3

Holding

The taxing officer did not err in failing to consider the number of folios

Reasoning

The court found no error of principle by the taxing officer in respect of the folio count in items 2 and 3, and dismissed the application in its entirety.

p. 5

Legal principles established

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  • A reference under Rule 11 of the Advocates (Remuneration) Order must be filed within the prescribed 14-day timelines; a reference filed out of time without leave of court under Rule 11(4) is fatally incompetent
  • A delay of about 48 days after delivery of a taxation ruling renders a reference fatally incompetent
  • A court cannot interfere with a taxing officer's decision unless it is shown to be based on an error of principle or the fee is manifestly excessive
  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; where not so ascertainable the taxing officer may assess a just instruction fee

Court orders

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  1. 1.The Chamber Summons dated 16th December 2019 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Advocates (Remuneration) (Amendment) Order, 2014Order 11(1) and (2)
  • Advocates (Remuneration) Order, 1962Paragraph 11(1), (2), (3) and (4)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80

Cases cited (15)

  • M/s Behan & Okero Advocates vs National Bank of Kenya Limited
    [2008] eKLR
  • Moronge & Company Advocates vs Kenya Airports Authority
    [2014] eKLR
  • Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund Board
    Civ Appeal No 220 of 2004 (UR)
  • Joreth Ltd vs Kigano & Associates
    [2002] 1EA 92
  • George Arunga Sino t/a Jone Brooks Consultants Limited vs J. O. & Geoffrey D. O. Yogo t/a Atieno Yogo & Co. Advocates
    [2012] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others
    [2014] eKLR
  • Vishisit Talwar vs Anthony Thuo Kanai t/a A. Thuo Kanai Advocates
    [2014] eKLR
  • Union of India vs Iota Yodogawa Ltd
  • Hilda Kaari Mwendwa vs Zakayo M Magara & 2 Others
    [2016] eKLR
  • Governors Balloon Safaris Ltd vs Skyship Company Ltd & Another
    [2015] eKLR
  • First American Bank of Kenya vs Shah & Others
    IEA 64
  • Steel Construction Petroleum Engineering (EA) Ltd vs Uganda Sugar Factory
  • John Maina Mburu t/a John Maina Mburu & Co. Advocates vs George Gitau Munene & 3 others
    [2015] eKLR
  • Machira & Co. Advocates vs Arthur K. Magugu & Another
    CA 199/2002 [2012] eKLR
  • Furaha Eugenes vs Jomo Kenyatta University of Agriculture and Technology (Rwanda)
    R Com 01249/2017/TC/NYGE
Jurisdiction invoked
Paragraph 11(1) and (2) of the Advocates (Remuneration) Order, 1962 read with Section 3A of the Civil Procedure Act - reference from a taxing officer's decision to a Judge in Chambers

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Furaha Eugenes v Jomo Kenyatta University of Agriculture and Technology [2021] KEELC 2299 (KLR)", Case Analysis (2020). Chamber Summons dated 16th December 2019 (arising from ELC No. 291 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2299/eng@2021-07-22

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