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ELCDismissedNotice of Motion dated 27th October, 2020 (arising from Advocate/Client Bill of Costs dated 11th June, 2020; originating from Kajiado ELC Case No. 40 of 2018)· [2021] KEELC 4102 (KLR)

Muturi S. K & Co. Advocates & 3 others v Mazingira Welfare And Sports Association [2021] KEELC 4102 (KLR)

Environment and Land Court
2 March 2021
COChristine Ochieng
2,160 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, an advocate acting as client in a fee dispute, moved the court by Notice of Motion dated 27th October 2020 seeking review and/or setting aside of a Taxing Master's Ruling dated 19th October 2020 on an Advocate/Client Bill of Costs arising from Kajiado ELC Case No. 40 of 2018, plus a stay of execution. The Applicant contended that written submissions and documents filed on 9th July 2020 were not considered, amounting to an error apparent on the face of the record, and that it would be unjust to be saddled with costs of nearly four million shillings without submissions being considered. The Respondents opposed, asserting the taxation was reasonable and that the Applicant should have lodged a reference under Rule 11 of the Advocates (Remuneration) Order and given the requisite notice to the Taxing Master. The court framed a single issue: whether the Ruling should be reviewed or set aside. Relying on Section 80 of the Civil Procedure Act, Order 45 Rule 1, and Muyodi v ICDC, the court held that an erroneous conclusion of law or evidence is a ground for appeal, not review. It found that the administrative functions under sections 11 and 12 of the Environment and Land Court Act do not extend to delivery of rulings, and that Rule 11 of the Advocates (Remuneration) Order supplies the proper avenue for challenging a Taxing Master's decision. The application was held defective and unmerited and was dismissed with costs; the stay of execution was not considered.

Key legal issues

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01

Whether the court should review and/or set aside the Taxing Master's Ruling dated 19th October 2020 on the ground of error apparent on the face of the record

Holding

The application for review was defective and unmerited; the applicant had not met the threshold for review

Reasoning

The impugned decision was a Taxing Master's Ruling on an Advocate/Client Bill of Costs. Rule 11 of the Advocates (Remuneration) Order provides the existing legal framework for objecting to a Taxing Master's decision, including notice and a reference by chamber summons. The applicant ignored that avenue and instead invoked Order 45 review, arguing an administrative failure to place filed documents in the court file. The court held that the administrative functions under section 12 of the Environment and Land Court Act do not include delivery of a ruling, and that an erroneous conclusion is a ground for appeal, not review.

p. 3
02

Whether the court should grant a stay of execution of the Taxing Master's Ruling

Holding

The court declined to consider the stay since the review application failed

Reasoning

The stay of execution sought was consequential on the review application. Having declined to review the Ruling of the Taxing Master dated 19th October 2020, the court found no basis to proceed to determine the stay, and dismissed the application with costs.

p. 3

Legal principles established

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  • The proper procedure for a party aggrieved by a Taxing Master's decision on an Advocate/Client Bill of Costs is a reference under Rule 11 of the Advocates (Remuneration) Order, not an application for review under Order 45 of the Civil Procedure Rules
  • An applicant for review must satisfy the grounds in Order 45 Rule 1: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason

Court orders

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  1. 1.Dismissal of the Notice of Motion application dated the 27th October, 2020
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3(2)
  • Civil Procedure RulesOrder 49 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Advocates (Remuneration) OrderClause 11 (Rule 11)
  • Environment and Land Court ActSections 11 and 12

Cases cited (14)

  • Grace Akinyi Vs Gladys Obiri & Another
    (2016) eKLR
  • Bernard Gichobi Njira V Kanini Njira Kathendu & Another
    (2015) eKLR
  • Richard Nchapai Leiyangu Vs IEBC & 2 others
    Civil Appeal No. 18 of 2013
  • Francis Njoroge V Stephen Maina Kamore
    (2018) eKLR
  • Executive Committee Plot Owners Welfare Group & 288 Others V Langat Joel & 4 others (sued as management Committee of Chelimo Squatters Group)
    (2018) eKLR
  • Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    (2019) eKLR
  • KTK Advocates V CPF Financial Services Limited
    (2018) eKLR
  • Luka Wagana & 2 others V Charles Alexander Kiai & Another
    (2020) eKLR
  • Kakuta Maimai Hamise V Peris Pesi Tobiko, Independent Electoral and Boundaries Commission & Returning Officer Kajiado East Constituency
    (2017) eKLR
  • Otieno Ragot & Company Advocates V National Bank of Kenya Limited
    (2016) eKLR
  • Green Hills Investments Vs China National Complete Plant Export Corporation
    (2004) eKLR
  • Muyodi V Industrial and Commercial Development Corporation and Another
    EALR (2006) EA 243
  • Origo & Another V Mungala
    (2005) 2KLR
  • National Bank of Kenya Vs Ndungu Njau
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review of court orders)

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, "Muturi S. K & Co. Advocates & 3 others v Mazingira Welfare And Sports Association [2021] KEELC 4102 (KLR)", Case Analysis (2021). Notice of Motion dated 27th October, 2020 (arising from Advocate/Client Bill of Costs dated 11th June, 2020; originating from Kajiado ELC Case No. 40 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4102/eng@2021-03-02

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