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ELCDismissedMachakos ELC No. 130 of 2019· [2022] KEELC 3314 (KLR)

Ndeti & another (Legal Representatives of the Estate of Idah Ndeti) v Ndeti (Legal Representatives of the Estate of Kituto Ndeti) & 4 others (Environment & Land Case 130 of 2019) [2022] KEELC 3314 (KLR)

Environment and Land Court
27 July 2022
ANA. NYUKURI
1,621 words in judgment
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The bottom line

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A Kenyan court refused to extend time to challenge a taxed legal fee bill because the applicants never filed the required Notice of Objection first.

What this practically means

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Executive summary

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The 1st, 2nd and 3rd Defendants applied by notice of motion dated 25th May 2021 for extension of time, or leave, to lodge a reference out of time against the Taxing Master's ruling delivered on 12th May 2021 in the bill of costs. They contended the ruling was not typed, that they had timely requested reasons for the decision, and that those reasons had not been supplied. The Plaintiffs opposed, asserting the application was incompetent, that the ruling itself contained the taxing master's reasons, and that the delay was inordinate and unexplained. The court identified a sole issue: whether the applicants were entitled to the orders sought. It noted its discretion under Section 95 of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules and Paragraph 11(4) of the Advocates (Remuneration) Order to enlarge time, to be exercised judiciously, citing the Supreme Court's requirement that an applicant explain the whole period of delay. The court held that the applicants' letter of 12th May 2021, which merely requested the ruling and blanket reasons without specifying objected items, was not a Notice of Objection under Paragraph 11(1). No notice of objection had been filed, nor was extension sought for one, so a reference would have no basis and allowing it would put the cart before the horse. The court agreed with the respondents that the ruling itself contained reasons. The application was dismissed with costs to the respondents.

Key legal issues

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Whether the applicants were entitled to extension of time to lodge a reference against the taxing master's ruling

Holding

The application was dismissed because no Notice of Objection under Paragraph 11(1) of the Advocates (Remuneration) Order was filed, nor was extension of time for such notice sought; a reference without such notice would have no basis

Reasoning

The taxing master's decision was delivered on 12th May 2021, giving the applicants 14 days to give a notice of objection specifying the items objected to. Their letter of 12th May 2021 merely requested the ruling and reasons without specifying objected items, so it was not a notice of objection. The taxing master's ruling itself contained her reasons. Allowing a reference where no notice of objection existed would put the cart before the horse and would not serve the interests of justice.

p. 4

Legal principles established

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  • The court has discretion to extend time for doing any act, to be exercised judiciously, and the applicant must satisfactorily explain the whole period of delay
  • A blanket request for reasons of a taxing master's ruling does not amount to a Notice of Objection envisaged under Paragraph 11(1) of the Advocates (Remuneration) Order

Court orders

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  1. 1.The Application dated 25th May 2021 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Advocates (Remuneration) OrderParagraph 11

Cases cited (1)

  • County Executive of Kisumu vs County Government of Kisumu & 8 others
    SC Civil Appl. No. 3 of 2016 [2017] eKLR
Jurisdiction invoked
Section 95 of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules; Paragraph 11(4) of the Advocates (Remuneration) Order

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, "Ndeti & another (Legal Representatives of the Estate of Idah Ndeti) v Ndeti (Legal Representatives of the Estate of Kituto Ndeti) & 4 others (Environment & Land Case 130 of 2019) [2022] KEELC 3314 (KLR)", Case Analysis (2022). Machakos ELC No. 130 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3314/eng@2022-07-27

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