Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as extracted (original suit arising from Embu Appeal No. 30/99 and Succession Cause No. 216 of 1996)· [2021] KEELC 4020 (KLR)

Mwaniki Gakuya Mbuthi & another v Priscilla Wanjiku Gakuya [2021] KEELC 4020 (KLR)

Environment and Land Court
5 March 2021
2,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a challenge to taxed legal costs because the challengers skipped the mandatory 14-day objection procedure and waited nearly a year to act.

What this practically means

#

Executive summary

#
The Plaintiffs (judgment debtors) filed a Notice of Motion dated 27th June 2019 seeking review of a bill of costs taxed on 10th December 2018 at Ksh. 144,270 following the striking out of their suit on 20th July 2018 on a preliminary objection of res judicata. They complained that the bill of costs was never served on them, that it was drawn in the name of the deceased Defendant, and sought stay of execution pending review, alternatively reduction of the taxed costs to Ksh. 90,000. The substituted Defendant (judgment creditor), who had been substituted for the deceased Defendant on 21st March 2017, opposed the application, asserting proper service by a licensed process server on 24th August 2018 and faulting the Plaintiffs for bypassing the objection procedure under Rule 11 of the Advocates (Remuneration) Order 2009. The court framed four issues: whether a taxed bill could be reviewed, whether it was served, whether stay should issue, and costs. Applying Rule 11 and the qualified presumption in favour of a process server's report, the court held that the Plaintiffs were served with the bill and notice of taxation and were at latest aware of the ruling by 8th February 2019 when the notice to show cause was served. Having filed no notice of objection within 14 days, made no application for extension of time, and filed grounds of objection almost a year after taxation, their move for direct review bypassed the prescribed procedure and was incompetent. The application was dismissed with costs to the defendant/judgment creditor.

Key legal issues

#
01

Whether the Court can review the taxed bill of costs

Holding

No - the court cannot entertain a direct review; the party must first lodge an objection before the taxing officer under Rule 11 of the Advocates (Remuneration) Order, and where time has expired, seek extension of time by chamber summons

Reasoning

Rule 11 prescribes a two-stage process: written notice of objection to the taxing officer within 14 days, then a reference to a judge. The plaintiffs never gave the notice of objection and never sought extension of time, moving the court directly for review and thereby bypassing the first stage. The application was therefore premature and incompetent and had to fail.

p. 4
02

Whether the bill of costs was served on the Plaintiffs

Holding

Yes - the court accepted the licensed process server's evidence of service of the bill of costs and notice of taxation on 24th August 2018

Reasoning

Relying on the qualified presumption in favour of a process server's report, and given the subsequent service on 8th February 2019 of the notice to show cause why the plaintiffs should not be committed to civil jail, the court was satisfied the plaintiffs had notice of the taxation proceedings by no later than 8th February 2019.

p. 4
03

Whether the delay of nearly one year in objecting was excusable

Holding

No - the delay was inexcusable and no leave to file out of time was sought

Reasoning

The court applied the extension-of-time principles (length of delay, reason for delay, prejudice) and found the plaintiffs had made no prayer for leave to file out of time and had filed their grounds of objection almost a year after taxation. In such circumstances the discretion to enlarge time could not be exercised in their favour, and the substantive orders could not be granted.

p. 4

Legal principles established

#
  • The procedure for objecting to a taxing officer's decision is by written notice within 14 days, and the High Court has discretion to enlarge that time even after expiry
  • A litigant who bypasses the prescribed procedure for objecting to a taxed bill of costs renders the application premature and incompetent
  • There is a qualified presumption in favour of the process server, and the burden lies on the party questioning service to show the return is incorrect

Court orders

#
  1. 1.The Notice of Motion dated 27th June 2019 is dismissed with costs to the defendant/judgment creditor

Authorities

#

Legislation

  • Advocates (Remuneration) Order 2009Rule 11
  • Advocates Remuneration OrderSection 11 (as submitted by the defendant)
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Raphael Kipsoi Arap Korir Vs Muskie Limited & 4 Others
    [2020] e K.L.R
  • Justus Mungumbu Omiti Vs Walter Enock Nyambati Osebe & 2 Other
    [2010] e KLR
  • MB Automobile v Kampala Bus Service
    [1966] EA 480
  • Nairobi City County Vs Otieno Ogolla & Associates
    [2020] e KLR
  • Thomas K’bahati t/a K’bahati & Co. Advocates Vs Janendra Raichand Shah
    [2018] e KLR
  • Njagi Wanjeru & Company Advocates Vs Ben Momanyi t/a Momanyi & Associates
    (2014) e KLR
  • Leo Sila Mutiso Vs Rose Hellen Wangari Mwangi
    CA Civil Application No. NAI 25 of 1997 (UR)
  • Moses Mwicigi & 14 Others Vs Independent Electoral and Boundaries Commission & 5 Others
    [2016] e KLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Civil Procedure Rules (including Order 45 review) and the Advocates (Remuneration) Order 2009

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwaniki Gakuya Mbuthi & another v Priscilla Wanjiku Gakuya [2021] KEELC 4020 (KLR)", Case Analysis (2021). Not stated in the judgment as extracted (original suit arising from Embu Appeal No. 30/99 and Succession Cause No. 216 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4020/eng@2021-03-05

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