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ELCOtherNot stated in the judgment· [2021] KEELC 3730 (KLR)

Charles K. Maiyo & another v John Mburu & another [2021] KEELC 3730 (KLR)

Environment and Land Court
15 April 2021
MOM.C. Oundo
3,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to hear both sides' challenges to taxed legal fees because they skipped the mandatory first step of asking the taxing officer for written reasons.

What this practically means

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Executive summary

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Before the Environment and Land Court were a Chamber Summons dated 22 November 2019 by the Defendant, Rose Wanjiku Mburu, seeking stay of execution of a certificate of taxed costs pending the hearing of her Reference against a taxing officer's decision, and the Plaintiffs' Counter Reference dated 14 May 2020 seeking enhancement of certain taxed items. The bill had been taxed at Ksh 528,875/= with interest of Ksh 477,867.70/=, and a decree issued on 11 June 2019. Framing three issues - stay, competency of the References, and the orders to make - the court held that taxation forms part of the execution process and that, by analogy with Order 42 Rule 6, stay pending a Reference turns on substantial loss and security. Although the applicant failed to demonstrate substantial loss and offered no security, the court, invoking Article 159(2)(d), allowed stay on terms. On competency, the court found that paragraph 11 of the Advocates (Remuneration) Order requires an aggrieved party first to request reasons from the taxing master in writing before filing a Reference, and that neither party had done so. Relying on Speaker of the National Assembly v Karume, Machira v Magugu and Gacau Kariuki, the court found both References incurably defective, un-procedural and an abuse of process. It declined to determine the merits of the disputed items, directing the parties to regularise their References within fourteen days, granting stay of the certificate of costs subject to deposit of Ksh 528,875/= or a bank guarantee within thirty days, and making no order as to costs.

Key legal issues

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01

Conditions for stay of execution pending a Reference on taxation

Holding

Stay granted on terms - deposit of the taxed costs or a bank guarantee in court within thirty days - because the applicant showed no delay and the respondents could be compensated in costs

Reasoning

By analogy with Order 42 Rule 6, stay pending a Reference requires substantial loss and security. The applicant filed the application sixteen days after taxation, so there was no inordinate delay. She failed to demonstrate the specific substantial loss she would suffer and offered no security, but the court, guided by Article 159(2)(d), exercised discretion in her favour since the respondents would suffer no prejudice if compensated in costs.

p. 4
02

Competency of the Reference and Counter Reference

Holding

Both were incurably defective and an abuse of process for non-compliance with paragraph 11 of the Advocates (Remuneration) Order

Reasoning

Paragraph 11 requires an aggrieved party to first object in writing requesting the taxing master to give reasons before filing a Reference within 14 days of receipt of the reasons. Neither party sought reasons before filing, and no explanation was given for adopting a different procedure. Following Karume and Machira, the prescribed procedure must be strictly followed. The parties were instead given 14 days to regularise the References.

p. 4
03

Applicable Remuneration Order (2014 vs 2009)

Holding

Not determined on the merits as the References were found procedurally defective and parties were directed to file proper References

Reasoning

The Defendant argued the taxing officer erred in principle by applying the 2014 rather than the 2009 Remuneration Order, the suit having been filed in November 2010, and contended the instruction fee and items were excessive. The Plaintiffs defended the taxation and sought enhancement of other items. The court did not reach these merits, instead directing compliance with paragraph 11 and staying execution subject to security.

p. 2

Legal principles established

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  • Taxation of costs is part of the execution process and stay of execution pending a Reference is guided by the principles in Order 42 Rule 6 - substantial loss and security
  • Where a specific procedure for redress of a grievance is prescribed, it must be strictly followed; an aggrieved party must first request reasons from the taxing master before filing a Reference under paragraph 11

Court orders

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  1. 1.The Applicants shall within fourteen (14) days give the requisite notice in writing in accordance with Paragraph 11(1) of the Advocates' Remuneration Order, 2009, and subsequently comply with sub-paragraph (2) of paragraph 11 with regard to the filing of a Reference and counter Reference by Chamber Summons setting out its grounds of objection to the taxation of costs.
  2. 2.There shall be a stay of execution of the Certificate of Costs dated the 11th June 2019 pending the hearing and determination of the Reference and counter Reference to be filed in accordance with Paragraph 11 of the Advocates' Remuneration Order, subject to the deposit in court of the taxed costs of Ksh.528,875/= or a Bank Guarantee therefor within thirty (30) days.
  3. 3.There shall be no orders as to costs of both the applications.

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22(1)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Constitution of KenyaArticle 159; Article 159(2)(d)
  • Civil Procedure RulesOrder 42 Rule 6; Order 42 Rule 6(2); Order 42 Rule 6(2)(b)
  • Advocates Remuneration OrderParagraph 11; Rule 11(2); Rule 10; Schedule VI
  • Advocates ActSection 51
  • Advocates (Remuneration) Order 1962Section 62(1)
  • Advocates Remuneration Order 2009Schedule VI
  • Advocates Remuneration Order 2014Schedule VI

Cases cited (6)

  • Premchand Ralchand Ltd vs Quarry Services of East Africa Ltd & Others
    [1970] EA
  • Charles Wahome Gethi vs. Angela Wairimu Gethi
    [2008] eKLR
  • Kenya Shell Ltd vs. Kibiru & Another
    [1986] KLR 410
  • Speaker of the National Assembly vs James Njenga Karume
    Nairobi Civil Application No. 92 of 1992
  • Machira & Co. Advocates vs Magugu
    [2000] 2 EA 428
  • Gacau Kariuki & co. Advocates vs Allan Mbugua Nganga
    [2012] eKLR
Jurisdiction invoked
Order 22 Rule 22(1) of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution of Kenya

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, "Charles K. Maiyo & another v John Mburu & another [2021] KEELC 3730 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3730/eng@2021-04-15

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