Mwaniki Gakuya Mbuthi & another v Priscilla Wanjiku Gakuya [2021] KEELC 4020 (KLR)
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
#Key legal issues
#Whether the Court can review the taxed bill of costs
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
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.
Whether the bill of costs was served on the Plaintiffs
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
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.
Whether the delay of nearly one year in objecting was excusable
No - the delay was inexcusable and no leave to file out of time was sought
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.
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.The Notice of Motion dated 27th June 2019 is dismissed with costs to the defendant/judgment creditor
- 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.