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ELCPartially Allowed· [2022] KEELC 1532 (KLR)

Nanak Hospital Management Services Limited v Munene Wambugu & Kiplagat Advocates [2022] KEELC 1532 (KLR)

High Court of Kenya
8 February 2022
2,348 words in judgment
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The bottom line

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Kenya's High Court allowed a client to challenge a Kshs 2.28 million costs ruling late because his lawyer's illness and death caused the delay, and execution was stayed.

What this practically means

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Executive summary

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Two applications came before the High Court at Nairobi: a Notice of Motion dated 4/07/2021 by Munene Wambugu and Kiplagat Advocates (Respondent/Applicant) under Section 51(2) of the Advocates Act seeking judgment for certified advocate-client costs of Kshs 2,285,085.48 plus 14% interest from 1/09/2019 following a certificate of taxation issued after the taxing master's ruling of 5/03/2020; and a Notice of Motion dated 26/10/2021 by Dr. Janardan Dhayabhai Patel (Applicant/Respondent) seeking a stay of execution of the taxing officer's ruling and leave to appeal (file a reference) out of time, on the ground that his former advocate Mr Nyawara fell ill and died, leaving him unaware of the ruling until auctioneers attempted execution. Mogeni J first rejected the jurisdictional objection, holding that the court's jurisdiction over taxation matters under Rules 11 and 12 of the Advocates (Remuneration) Order 1962 was engaged since an objection challenging the taxing officer's decision existed. The court then held that although the application was brought under the wrong provisions (Civil Procedure Rules instead of paragraph 11(4) of the Remuneration Order), Article 159(2)(d) required the defect to be disregarded. On the merits, the court found the delay occasioned by the advocate's illness and death - acts of God - and, applying Phillip Chemwolo v Augustine Kubede, granted leave to file the reference out of time with 45 days to lodge it, and stayed execution. The Section 51(2) application was declared overtaken by events, with costs of the applications in the cause.

Key legal issues

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01

Jurisdiction of the High Court over taxation matters

Holding

The court has jurisdiction to entertain the application because an objection challenging the taxing officer's decision is on record, engaging Rule 11 of the Advocates (Remuneration) Order.

Reasoning

The court explained that its jurisdiction on taxation questions is confined to two instances: a reference under Rule 11 challenging the taxing officer's decision, or a consensual reference by way of case stated. Since the instant matter involved an objection challenging the taxing officer's decision, the jurisdictional objection raised by the respondent failed.

p. 3
02

Procedural competency of an application brought under the wrong provisions

Holding

The application ought to have been brought under paragraph 11(4) of the Remuneration Order by Chamber Summons, but the defect was not fatal.

Reasoning

The court acknowledged the application was brought under Order 51 Rule 4 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, when it should have been under paragraph 11(4) of the Advocates Remuneration Order. Relying on Article 159(2)(d) of the Constitution, the court held that wrong provisions or wrong form no longer render an application fatal and disregarded the objection.

p. 3
03

Extension of time and stay following the death of the applicant's advocate

Holding

Extension of time to file a reference and stay of execution were granted because the delay was occasioned by the illness and death of the applicant's advocate.

Reasoning

The court found the delay was not unreasonable: the former advocate Mr Nyawara was indisposed and died, and the new advocates had to apply to the Deputy Registrar for the court file to acquaint themselves with the matter. The court, citing Phillip Chemwolo v Augustine Kubede, held that a party should not be penalised for a mistake by losing the chance to be heard on the merits, and found a case made out for extension of time and stay.

p. 3

Legal principles established

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  • Failure to cite the correct provisions of law, citing wrong provisions or bringing an application in the wrong form is not fatal, the court being enjoined to disregard procedural technicalities
  • A judge's jurisdiction over taxation questions arises under Rules 11 and 12 of the Advocates (Remuneration) Order, i.e. on a reference challenging the taxing officer's decision or by consent by way of case stated
  • Death or indisposition of an advocate is an act of God and a valid ground for extension of time, and a party should not be deprived of a hearing on the merits because of such a mistake

Court orders

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  1. 1.Prayers 2, 3 and 4 of the application dated 26/10/2021 granted (stay of execution of the ruling of 5/03/2020; leave to appeal out of time; appeal deemed properly filed)
  2. 2.The applicant/respondent to lodge the appeal within 45 days
  3. 3.Costs of the application to be in the cause
  4. 4.The application dated 4/07/2021 (for entry of judgment on the certificate of taxation) declared overtaken by events
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Advocates Remuneration OrderParagraph 11(1), (2) and (4); Part I paragraph 7
  • Advocates (Remuneration) Order 1962Rules 11 and 12
  • Civil Procedure RulesOrder 51 Rule 4
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • PHILLIP CHEMWOLO & ANOTHER –VS- AUGUSTINE KUBEDE
    [1982-88] KLR 103
Jurisdiction invoked
Rules 11 and 12 of the Advocates (Remuneration) Order 1962 (jurisdiction over objections to taxing officer's decision)

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, "Nanak Hospital Management Services Limited v Munene Wambugu & Kiplagat Advocates [2022] KEELC 1532 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1532/eng@2022-02-08

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