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ELCStruck OutMurang'a ELC Chamber Summons Application dated April 13, 2022 (arising from Murang'a ELC No. 13 of 2020)· [2023] KEELC 247 (KLR)

Hunja v Elias & another (Miscellaneous Application E010 of 2022) [2023] KEELC 247 (KLR)

Environment and Land Court
26 January 2023
LGL. Gacheru
2,120 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a challenge to a taxation ruling filed 77 days late, confirming the 14-day deadline under Rule 11 is strict.

What this practically means

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Executive summary

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By a Chamber Summons dated April 13, 2022, the Defendants/Applicants sought to set aside a ruling of the Deputy Registrar, SK Nyaga, delivered on March 28, 2022, in which their Bill of Costs dated February 4, 2022 was taxed off from Kshs 189,205/= to Kshs 3,360/=. They sought referral of the Bill for fresh taxation before a different Taxing Master or, alternatively, taxation by the Court itself, contending the taxing master misdirected herself by taxing off several items contrary to the Advocates Remuneration Amendment Order, 2014. The Plaintiff/Respondent opposed, arguing the application was incompetent, having been filed 77 days beyond the statutory period, and disputing the items claimed. The court framed a preliminary question: whether the Reference could be sustained. Applying Rule 11 of the Advocates Remuneration Order, the court found the Applicants failed to give notice of objection within 14 days and filed the reference over two months after the ruling, without reasons for the delay and without invoking the court's power under Rule 11(4) to enlarge time. Following Muriu Mungai & Co. Advocates v New Kenya Co-operative Creameries, the court accepted that where reasons appear on the face of a taxation ruling, further reasons need not be sought; but that did not excuse non-compliance with the timelines. Relying on Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki and Mario Rossi v Salama Beach Hotel Limited, the court held the reference could not be sustained, struck it out entirely, and awarded costs to the Plaintiff/Respondent. Judgment delivered virtually at Murang'a on January 26, 2023 by L. Gacheru, Judge.

Key legal issues

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01

Compliance with Rule 11 of the Advocates Remuneration Order

Holding

The Applicants did not give notice of objection within 14 days and filed the reference 77 days after the ruling without seeking enlargement of time under Rule 11(4); the reference is incompetent

Reasoning

Rule 11 requires notice of objection within 14 days and a chamber summons within 14 days of receipt of reasons, with the Court empowered under paragraph 11(4) to enlarge time. The taxing master had given reasons on the face of her ruling, so no further reasons were needed. The Applicants filed on June 14, 2022, over two months late, gave no reasons for the delay, and never sought extension of time; the reference therefore could not be sustained.

p. 4
02

Effect of the taxing master giving reasons on the face of the decision

Holding

Where reasons appear on the face of the taxation ruling, the objector need not apply for further reasons; the sufficiency of reasons is not a bar to filing a reference

Reasoning

Following Muriu Mungai & Co. Advocates v New Kenya Co-operative Creameries, the court held that where reasons are on the face of the decision it is futile to require the taxing officer to furnish further reasons, but this does not excuse an objector from complying with the timelines in Rule 11 or from seeking leave where necessary.

p. 4

Legal principles established

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  • A reference against a taxing master's decision must be filed within 14 days of the ruling or the objector must obtain an extension of time under paragraph 11(4); a reference filed out of time without leave cannot be sustained and will be struck out
  • Where reasons appear on the face of the taxing master's decision, the objector need not seek further reasons under Rule 11(2), but must still move the Court within 14 days or seek enlargement of time

Court orders

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  1. 1.The Defendants'/Applicants' Reference filed on June 14, 2022 is struck out for non-compliance with Rule 11 of the Advocates Remuneration Order
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11 (including 11(1), 11(2) and 11(4))
  • Advocates Remuneration Amendment Ordernot specified
  • Court of Appeal RulesRule 55(1)(b)

Cases cited (6)

  • Republic vs Ministry of Agriculture & 2 Others Ex Parte Muchiri W'njuguna & 6 Others
  • Vise vs Gubb (1981) 3(SA) 753(C) 754H – 755C
    (1981) 3(SA) 753(C)
  • Twiga Motors Limited vs Hon. Dalmas Otieno Onyango
    (2015) eKLR
  • Muriu Mungai & Co. Advocates V New Kenya Co-operative Creameries
    [2012] eKLR
  • Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki
    [2022] eKLR
  • Mario Rossi v Salama Beach Hotel Limited
    [2018] eKLR
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (reference to a judge against a taxing master's decision); Rule 11(4) power to enlarge time

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, "Hunja v Elias & another (Miscellaneous Application E010 of 2022) [2023] KEELC 247 (KLR)", Case Analysis (2023). Murang'a ELC Chamber Summons Application dated April 13, 2022 (arising from Murang'a ELC No. 13 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/247/eng@2023-01-26

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