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ELCStruck OutMiscellaneous Case Reference (Chamber Summons dated 6th August, 2021)· [2022] KEELC 1732 (KLR)

Just Chicken Limited v Kiran Manubhai Patel (Executor of the Estate of Joyce Roni Waiganjo) & another [2022] KEELC 1732 (KLR)

Environment and Land Court
3 February 2022
MMM.D. Mwangi
1,127 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a late challenge to a taxed legal bill because it was filed in the wrong case file and lacked key documents.

What this practically means

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Executive summary

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The Applicant, Nancy Kioko, moved the court by Chamber Summons dated 6th August 2021 seeking leave to file an Objection and Taxation Reference out of time against the ruling of the Taxing Officer delivered on 8th April 2021, and that such leave operate as a stay of execution of the Certificate of Taxation dated 25th May 2021 arising from ELC No. 60 of 2019 between the parties. The 1st Respondent, Kiran Manubhai Patel, opposed the application through a Replying Affidavit, contending that the application was incompetent because it was filed as a miscellaneous application instead of in the main file where the taxation was done, and that the applicant had not attached the certificate of taxation, ruling or bill of costs. The respondent further argued that the applicant's advocates participated in the taxation and acknowledged service of the certificate of costs. Only the applicant filed submissions, addressing a single issue on whether items 1 and 2 of the bill of costs were taxed to scale, submissions the court found were drafted as if the extension had already been granted. The court, on its own perusal, noted the application failed to disclose the main case file and lacked the impugned documents. Guided by Nyamongo & Nyamongo Advocates v Pan Africa Insurance Co. Ltd & another, the court held the application incompetent and incurably defective, holding that section 3A of the Civil Procedure Act could not revive it. The Chamber Summons was struck out with costs to the 1st Respondent.

Key legal issues

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01

Competence of the miscellaneous application challenging taxation

Holding

The application was incompetent and incurably defective because it was filed as a miscellaneous application rather than in the main case file (ELC No. 60 of 2019) where the taxation and ruling were done

Reasoning

The court, on its own perusal, noted the application did not disclose the main case file where the taxation occurred, nor did it attach the ruling, certificate of taxation or bill of costs. Following Nyamongo & Nyamongo Advocates v Pan Africa Insurance Co. Ltd & another, the proper procedure was to file in the same case where the taxation was done. The defect could not be cured by section 3A.

p. 2
02

Invocation of section 3A Civil Procedure Act as a saving provision

Holding

The inherent jurisdiction under section 3A cannot rescue an application so defective that it requires total overhaul rather than repair

Reasoning

The court acknowledged section 3A as the foundation of the 'oxygen rule', often invoked to cure defects in pleadings for the ends of justice. However, it held the application before it was so defective that the court could not 'breathe in life' into it, especially where the applicant had the benefit of legal counsel.

p. 2

Legal principles established

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  • An application challenging a taxation ruling ought to be filed in the same case file where the taxation was done, not as a miscellaneous application
  • Section 3A of the Civil Procedure Act cannot be used to cure an incurably defective application

Court orders

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  1. 1.The Chamber Summons Application dated 6th August, 2021 is struck out with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Advocates (Remuneration Order) 2014

Cases cited (1)

  • Nyamongo & Nyamongo Advocates vs Pan Africa Insurance Co. Ltd & another
    (2016) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent jurisdiction), invoked on the face of the Chamber Summons

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, "Just Chicken Limited v Kiran Manubhai Patel (Executor of the Estate of Joyce Roni Waiganjo) & another [2022] KEELC 1732 (KLR)", Case Analysis (2022). Miscellaneous Case Reference (Chamber Summons dated 6th August, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1732/eng@2022-02-03

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