Mazingira Welfare and Sports Association v Muturi S. K & Co. Advocates [2021] KEELC 2385 (KLR)
The bottom line
#A Kenyan court gave a Sacco a second chance to challenge a Kshs 3.6M legal fees bill, but refused to pause its collection.
What this practically means
#Executive summary
#Key legal issues
#Enlargement of time to file a reference against a Taxing Master's decision under Clause 11 of the Advocates (Remuneration) Order
Time enlarged; the court excused the counsel's inadvertent mistake that caused the delay, relying on Article 50 of the Constitution and the court's discretion under Clause 11(4), and directed lodgment of the reference within 14 days.
The court noted the Applicant had earlier pursued review instead of a reference following the court's own ruling that a reference was the proper route. Citing Peter Julius Njoroge v Fidelity Commercial Bank Limited, where a 45-day delay was held not inordinate, the judge found the Respondent had not demonstrated prejudice. Section 7 of the Civil Procedure Act defeated the res judicata objection since the earlier ruling concerned review, not a reference. Article 50's fair-hearing guarantee favoured determination on merit.
Stay of execution of the Taxing Master's Order
Stay declined because no judgment had been entered on the taxed costs and execution had not commenced, so no substantial loss was shown.
Applying the parameters in James Wangalwa & Another v Agnes Naliaka Cheseto, substantial loss is the cornerstone of a stay application. The court found the taxed costs had not been entered as a judgment and execution had not been put in motion, hence the Applicant would suffer no substantial loss. The court also clarified that its earlier ruling had never determined the stay issue, contrary to the Respondent's assertion.
Whether the application was res judicata and an abuse of process
The application was not res judicata; the earlier dismissed application sought review, not a reference, and the Respondent was relying on procedural technicalities.
The court applied section 7 of the Civil Procedure Act, requiring that the matter directly and substantially in issue have been heard and finally decided in a former suit between the same parties. Because the prior ruling addressed a review application under Order 45 and expressly left the reference route open, the elements of res judicata were not met. The judge characterized the objection as an attempt to rely on procedural technicalities.
Legal principles established
#- An application for review of a Taxing Master's decision is no substitute for a reference under Rule 11 of the Advocates (Remuneration) Order; a prior dismissed review application does not render a subsequent reference application res judicata.
- Stay of execution cannot issue where taxed costs have not been entered as judgment and execution has not been set in motion, as no substantial loss is demonstrated.
Court orders
#- 1.Time enlarged; the Applicant granted leave of fourteen (14) days to file the Reference out of time
- 2.The notice objecting to the decision of the Taxing Master expressed through the letter dated 30th October, 2020 deemed to have been properly filed on time
- 3.The prayer for stay of execution of the Taxing Master's Order dated 19th October, 2020 declined
- 4.Costs in the cause
- Jurisdiction invoked
- Clause 11(4) of the Advocates (Remuneration) Order; Article 50 of the Constitution; section 7 of the Civil Procedure Act (on res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mazingira Welfare and Sports Association v Muturi S. K & Co. Advocates [2021] KEELC 2385 (KLR)", Case Analysis (2021). Chamber Summons application dated 17th March, 2021 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2385/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.