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ELCDismissedKisumu MISC Application (arising from Environment and Land Court MISC Application No. 28 of 2020, taxation)· [2022] KEELC 2834 (KLR)

Amondi & Company Advocates v Varma & others (Environment and Land Miscellaneous Application 28 of 2021) [2022] KEELC 2834 (KLR)

Environment and Land Court
15 July 2022
AOANTONY OMBWAYO
1,405 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to excuse a three-month unexplained delay in challenging a Kshs 2.16 million taxed legal fees award, dismissing the clients' application with costs.

What this practically means

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Executive summary

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The applicants, clients of the respondent advocate, moved the court under Rule 11(2) of the Advocates Remuneration Order 2014 and sections 1A and 3A of the Civil Procedure Act seeking leave to file a reference out of time against the decision of Taxing Master Hon. M. Shimenga delivered on 1 April 2021, which taxed the respondent's Bill of Costs at Kshs. 2,158,755.89, together with a stay of that ruling and an order for re-taxation by another taxing officer, contesting items 1(a), (b) and (c). The applicants explained the delay by stating that a notice of objection dated 20 April 2021 was served on the respondent and that they repeatedly sought reasons and a certified copy of the ruling, which was only issued on 20 May 2021. The respondent opposed, contending the three-month delay was inordinate, that the applicants had not shown irreparable loss, and that he was entitled to payment for work done over years of litigation. The court noted that paragraph 11 of the Advocates Remuneration Order does not set out the factors for extending time and, following Paul Wanjohi Mathenge v Duncan Gichane Mathenge and related Court of Appeal authorities (including Leo Sila Mutiso v Rose Hellen Wangari Mwangi), applied the familiar tests of length of delay, reasons for delay, chances of success and prejudice. Finding the applicants aware of the ruling by 19/5/2021 but filing only on 9/8/2021, the court held the delay inordinate and unexplained and dismissed the extension-of-time application with costs. Dated, signed and delivered at Kisumu on 15 July 2022 by Antony Ombwayo J.

Key legal issues

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Extension of time to file a reference against a Taxing Master's ruling

Holding

The application was dismissed because the delay of three months was not explained.

Reasoning

The application was due within 14 days of the ruling. The applicants became aware of the ruling on 19/5/2021 upon receipt of a certified copy on 20/5/2021 and filed the reference on 9/8/2021. The court, guided by Paul Wanjohi Mathenge v Duncan Gichane Mathenga and related Court of Appeal authorities on Rule 4 principles, held that the length of and reasons for the delay are key factors and found the delay inordinate and unexplained. Consequently, extension of time was refused and the application dismissed with costs.

p. 3

Legal principles established

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  • In an application to extend time the court considers the length of the delay, the reasons for delay, the chances of the intended reference succeeding, and the degree of prejudice to the respondent; the discretion is unfettered but must be exercised judicially.

Court orders

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  1. 1.The application for extension of time is dismissed with costs

Authorities

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Legislation

  • Advocates Remuneration Order 2014Rule 11(2); Paragraph 11(1)(2)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 79G

Cases cited (4)

  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No Nai 26 of 2004
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order 2014 and sections 1A and 3A of the Civil Procedure Act (Cap 21)

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, "Amondi & Company Advocates v Varma & others (Environment and Land Miscellaneous Application 28 of 2021) [2022] KEELC 2834 (KLR)", Case Analysis (2022). Kisumu MISC Application (arising from Environment and Land Court MISC Application No. 28 of 2020, taxation). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2834/eng@2022-07-15

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