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ELCDismissedEnvironment & Land Case 75 of 2017· [2022] KEELC 15268 (KLR)

Nganda & another v Makau & 3 others

Environment and Land Court
7 December 2022
TMT W Murigi
2,114 words in judgment
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The bottom line

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A Kenyan court dismissed a challenge to a taxed legal bill because the applicant used the wrong procedure instead of a formal reference.

What this practically means

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Executive summary

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By a notice of motion dated March 28, 2022, the applicant (described in the ruling as the 1st defendant, though the caption lists the parties as plaintiffs and respondents) sought review and vacation of an order made on March 7, 2022 taxing a bill of costs at Kshs 90,375, and that its submissions be placed on record. The applicant argued that the bill was taxed without a hearing after its advocate failed to log into the virtual proceedings, violating its right to be heard. The respondent opposed, contending the application was time-barred, an abuse of process, and that the proper remedy against a taxation decision was a reference under paragraph 11 of the Advocates Remuneration Order, not a review under order 45 of the Civil Procedure Rules. The court framed a single issue: whether the taxing master committed errors of principle. Relying on Machira & Co Advocates, Donholm Rahisi Stores, Joreth Limited and Abok James Odera, Murigi J held that taxation is a special jurisdiction reserved to the taxing officer, challengeable only by a reference by chamber summons under paragraph 11(2), and that article 159(2)(d) and the overriding objective cannot displace that clear procedure. The applicant having invoked the wrong provisions, the application was found fatally defective and dismissed with costs to the plaintiff/respondent. The merits of the alleged denial of a hearing were not determined.

Key legal issues

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01

Whether a review under order 45 is a proper vehicle for challenging a taxing master's decision

Holding

No - the proper procedure is a reference under paragraph 11(2) of the Advocates Remuneration Order by chamber summons

Reasoning

Relying on Machira & Co Advocates, Donholm Rahisi Stores and Joreth Limited, the court held that taxation is a special jurisdiction reserved to the taxing officer, ventilated only through rule 11 references. The applicant invoked review under order 45 and article 159(2)(d), which cannot displace the clear statutory procedure. The application was therefore fatally defective and was dismissed with costs.

p. 4
02

Whether the taxing master erred in principle by taxing the bill without considering the applicant's submissions

Holding

The court did not determine this on the merits because no proper reference was before it

Reasoning

Although the applicant complained that the bill was taxed without a hearing, the court held that before interfering it must be satisfied the ruling was clearly wrong, and that what was before it was not a proper reference. The complaint could only be ventilated through the rule 11 procedure, so the merits were not reached.

p. 4

Legal principles established

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  • An order of a taxing master on a bill of costs may only be challenged before a judge by way of a reference under paragraph 11(2) of the Advocates Remuneration Order, not by way of review under order 45 of the Civil Procedure Rules
  • Article 159(2)(d) and the overriding objective do not oust clear statutory procedures for challenging taxation
  • A court may interfere with a taxing master's decision only where it was based on an error of principle or the amount taxed was manifestly excessive or low

Court orders

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  1. 1.The application dated March 28, 2022 is dismissed
  2. 2.Costs of the application to the plaintiff/respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 3A and 80
  • Civil Procedure RulesOrder 45 rules 1 and 2
  • Advocates (Remuneration) Order, 1962Paragraph 11(1), (2), (3), (4)
  • Advocates Act

Cases cited (7)

  • Machira & Co Advocates v Arthur K Magugu & Another
    [2012] eKLR

    Rule 11 provides the simple, expeditious mode of challenging taxation decisions through references to a judge in chambers

  • Donholm Rahisi Stores (suing as a firm) v East Africa Portland Cement Limited
    [2005] eKLR

    Taxation is a special jurisdiction of the taxing officer; the court will not interfere except by way of a rule 11 reference

  • Joreth Limited v Kigano and Associates
    [2002] 1 EA 92

    Principles for interfering with a taxing master's decision - error of principle or manifestly excessive award

  • Abok James Odera T/A AJ Odera & Associates v John Patrick Machira T/A Machira & Company Advocates
    (2013) eKLR

    The overriding objective does not uproot established principles and procedures

  • Kariuki Networks Ltd & Another v Dally Figgis Advocates
    Civil Application No Nai 293 of 2009

    Cited with approval within Abok James Odera on the overriding objective

  • Republic v University of Nairobi & another ex parte Nasibwa Wakenya Moses
    [2018] eKLR
  • Executive Committee Chelimo Plot Owners Welfare Group & 288 others v Langat Joel & 4 others
    [2018]
Jurisdiction invoked
Article 159(2)(d) of the Constitution, sections 3A and 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules (motion for review)

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, "Nganda & another v Makau & 3 others", Case Analysis (2022). Environment & Land Case 75 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15268/eng@2022-12-07

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