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ELCStruck OutNot stated in judgment (Chamber Summons dated 15th October 2021)· [2022] KEELC 1128 (KLR)

Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki [2022] KEELC 1128 (KLR)

High Court of Kenya
3 March 2022
JMJ M Mutungi
1,349 words in judgment
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The bottom line

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The High Court struck out a client's challenge to his lawyer's fees because he filed it 19 days late, missing the strict 14-day deadline.

What this practically means

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Executive summary

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The respondent/applicant, Dr. Andrew Isoe Mingate Ochoki, brought a Chamber Summons dated 15th October 2021 under Sections 1A and 3A of the Civil Procedure Act and Rule 11 of the Advocates Remuneration Order, seeking to set aside or vary the ruling and order of Hon. N. Makau delivered on 29th September 2021 taxing an advocate/client bill of costs at Kshs. 383,235/= in favour of the firm of Mirugi Kariuki & Co. Advocates. He complained that Schedule 6 had been wrongly applied on a higher scale for a matter (Nakuru ELC 307 of 2018 (O.S.)) that had not been heard or concluded, and that he had not been given credit for Kshs. 150,000/= allegedly paid in advance. The advocates opposed, contending that the reference was filed outside the fourteen-day period in paragraph 11(1) of the Advocates Remuneration Order without leave, and that there was no evidence of the alleged payment. Justice J M Mutungi found that the notice of objection and reference, filed on 19th October 2021, were nineteen days late with no explanation and no application to enlarge time under paragraph 11(4). Since the taxing officer's ruling contained her reasons, seeking reasons under paragraph 11(2) was unnecessary, following Mumias Sugar v Ojienda and Ahmed Nasir Abdikadir v National Bank of Kenya. The reference was struck out as incompetent and an abuse of the court process, with no order as to costs.

Key legal issues

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01

Timeliness of the reference under paragraph 11(1) of the Advocates Remuneration Order

Holding

The notice of objection and reference filed nineteen days after the ruling were out of time and no extension of time was sought under paragraph 11(4), rendering the reference incompetent

Reasoning

The ruling on taxation was delivered on 29th September 2021. Under paragraph 11(1) the applicant had fourteen days to lodge an objection, expiring on 14th October 2021. The notice of objection and reference were filed on 19th October 2021, nineteen days after the ruling, with no explanation for the delay and no application to enlarge time under paragraph 11(4). The court therefore found no competent reference before it.

p. 2
02

Whether failure to obtain reasons from the taxing officer invalidated the reference

Holding

Since the taxing officer's ruling contained her reasons, invoking paragraph 11(2) to seek reasons was unnecessary and the fourteen-day period ran from delivery of the ruling

Reasoning

Relying on Ahmed Nasir Abdikadir and Mumias Sugar, the court held that where reasons for taxation are embedded in the ruling, requiring a separate statement of reasons would be superfluous and ritualistic. Consequently the applicant could not rely on non-receipt of reasons to excuse the late filing; time ran from delivery of the ruling on 29th September 2021.

p. 2

Legal principles established

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  • Where the reasons for a taxation are contained in the ruling itself, there is no need for an objector to seek reasons from the taxing officer before filing a reference under paragraph 11 of the Advocates Remuneration Order
  • A reference filed outside the fourteen-day period prescribed by paragraph 11(1) without leave to enlarge time is incompetent and liable to be struck out

Court orders

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  1. 1.The reference is struck out for being incompetent and an abuse of the court process
  2. 2.No orders for costs of the reference

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 3A
  • Advocates Remuneration OrderParagraph 11(1), 11(2) and 11(4), Schedule 6

Cases cited (2)

  • Mumias Sugar Company Limited v Professor Tom Ojienda and Associates
    KSM HC Misc. No. 279 of 2017 [2018] eKLR
  • Ahmed Nasir Abdikadir & Co. Advocates -vs- National Bank of Kenya Ltd
    (2006) eKLR
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order; Sections 1A and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki [2022] KEELC 1128 (KLR)", Case Analysis (2022). Not stated in judgment (Chamber Summons dated 15th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1128/eng@2022-03-03

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