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ELCDismissedChamber Summons Application dated 28th February 2022 (Misc. Civil Applications Nos. E022, 23, 32 & 33 of 2021 referred)· [2022] KEELC 3376 (KLR)

Mbaabu v Mwangangi & Company Advocates (Environment and Land Miscellaneous Application E005 of 2022) [2022] KEELC 3376 (KLR)

High Court of Kenya
27 July 2022
COChristine Ochieng
1,998 words in judgment
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The bottom line

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The High Court in Machakos dismissed a client's attempt to halt taxation of her lawyer's fees, confirming the Deputy Registrar had proper jurisdiction over land in Machakos County.

What this practically means

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Executive summary

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This was a Chamber Summons dated 28th February 2022 by Angellina Mueni Mbaabu, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11(2) of the Advocates (Remuneration) Order, seeking a stay of taxation of advocate/client bills of costs filed by advocate Florence Mwangangi in Misc. Civil Applications Nos. E022, 23, 32 & 33 of 2021 at the Machakos High Court, setting aside of a ruling by Hon. B.J. Bartoo (Deputy Registrar) delivered on 24th February 2022 dismissing her preliminary objection, transfer of the files to the High Court in Nairobi (Family Division), and a declaration that the Deputy Registrar had usurped jurisdiction. The Applicant argued that the bills, relating to conveyancing on four land parcels also subject to Nairobi HC Succession Cause No. 1647 of 2011, ought to have been filed in Nairobi and that the taxation was forum shopping. The Respondent countered that the application was premature under Rule 11(2) since the bills had not been taxed, and that the Deputy Registrar had jurisdiction. Justice Christine Ochieng framed two issues and dealt with them jointly. Applying Order 42 Rule 6(2) and the Deposit Protection Fund decision, she held that taxation cannot occasion substantial loss, that the Applicant showed no prejudice and offered no security, and that since the land is in Machakos County the Deputy Registrar had jurisdiction. The Application under Rule 11(2) was premature, the Applicant's remedy being an appeal. The application was dismissed with costs to the Respondent on 27th July 2022.

Key legal issues

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01

Whether stay of taxation and setting aside of the Deputy Registrar's ruling were warranted

Holding

Application dismissed; conditions for stay not met and Rule 11(2) requirements not satisfied

Reasoning

The court applied Order 42 Rule 6(2) requirements of substantial loss and security, and the Deposit Protection Fund authority that taxation causes no loss. The Applicant showed no prejudice, offered no security, and the Application under Rule 11(2) was premature since the bills had not been taxed. The proper remedy against the Deputy Registrar's ruling was an appeal, not this application.

p. 4
02

Whether the Deputy Registrar lacked jurisdiction to tax the Bills of Costs

Holding

The Deputy Registrar had jurisdiction; lands being in Machakos County, taxation there was proper

Reasoning

Rule 10 of the Advocates (Remuneration) Order designates the Registrar or Deputy Registrar of the High Court as taxing officer. The bills related to conveyancing over land situated in Machakos County. Although the parcels were also subject to a Nairobi succession cause, this did not oust the Machakos Deputy Registrar's jurisdiction. Reliance on Owners of Motor Vessel 'Lilian S' did not assist the Applicant.

p. 4

Legal principles established

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  • Taxation of a Bill of Costs cannot occasion substantial loss to the person against whom it is taxed; it merely ascertains quantum
  • The Deputy Registrar has jurisdiction to tax bills of costs for conveyancing on land situated in the county of the court's station
  • Jurisdiction must be raised at the earliest opportunity; without it a court has no power to make one more step

Court orders

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  1. 1.Chamber Summons Application dated 28th February 2022 disallowed as unmerited
  2. 2.Costs of the Application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Advocates (Remuneration) OrderRule 11(2)
  • Advocates Remuneration OrderRule 10
  • Advocates Remuneration OrderSchedule VII

Cases cited (3)

  • Owners of Motor Vessel "Lilian S" V Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Bernard Gichobi Njira v Kanini Njira Kathendu & another
    [2015] eKLR
  • Deposit Protection Fund V Rosaline Njeri Macharia
    [2006] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, Cap 21 and Rule 11(2) 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, "Mbaabu v Mwangangi & Company Advocates (Environment and Land Miscellaneous Application E005 of 2022) [2022] KEELC 3376 (KLR)", Case Analysis (2022). Chamber Summons Application dated 28th February 2022 (Misc. Civil Applications Nos. E022, 23, 32 & 33 of 2021 referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3376/eng@2022-07-27

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