Ameli Inyangu & Partners Advocates v Muinde & another (Miscellaneous Application 18 of 2022) [2023] KEELC 685 (KLR)
The bottom line
#The High Court dismissed a client's bid to restart taxed legal fees, because the client skipped a mandatory step: asking the Taxing Master first.
What this practically means
#Executive summary
#Key legal issues
#Correct procedural avenue for challenging ex parte taxation
The application was properly before the court under Rule 11(2) of the Advocates (Remuneration) Order, but it was misconceived because the applicant never first sought setting aside before the Taxing Master.
The court adopted the reasoning in Ndungu Njoroge & Kwach Advocates and Gacau Kariuki that grievances against a taxing officer's decision are ventilated by reference under paragraph 11. The judge agreed with Kamau J's roadmap in Masika & Koross: the absent party must first ask the taxing master to set aside the ex parte order; only if refused may a reference be filed. The applicant bypassed that first step, leaving the court without the material before the Taxing Master.
Whether there were sufficient reasons to set aside the ex parte Ruling
No accident, inadvertence or excusable mistake was established; the claimed technical hitch and promise of a rescheduled date were not discernible from the record.
Applying Shah v Mbogo, the discretion to set aside ex parte orders exists to relieve against accident, inadvertence or excusable mistake, not deliberate obstruction. The court found no evidential basis on the record for the counsel's claimed virtual-platform failure or the alleged assurance of a future mention date. No item of the taxed bill was challenged, and the valuation report objection was not made out on the material before the court.
Competence of the Applicant's advocate on record
The court declined to determine the objection to the advocate's representation, holding it should have been raised before the Taxing Master.
The Respondent argued that the advocate appearing for the client had no Notice of Appointment and relied on authorities on the consequences of improper appointment. The judge chose not to delve into the representation issue, nor to follow the path of visiting counsel's mistakes on counsel, and instead dealt promptly with the basic issues in the application.
Legal principles established
#- A taxing master who proceeds ex parte must satisfy himself that the absent party had adequate notice; a party aggrieved by a refusal to set aside ex parte proceedings must first approach the taxing master before filing a reference under Paragraph 11 of the Advocates Remuneration Order.
- Any grievance arising from a decision of a Taxing Master must be ventilated by way of a reference to a judge under paragraph 11 of the Advocates Remuneration Order.
Court orders
#- 1.The application dated September 28, 2022 is dismissed with costs
- Jurisdiction invoked
- Rule 11 of the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ameli Inyangu & Partners Advocates v Muinde & another (Miscellaneous Application 18 of 2022) [2023] KEELC 685 (KLR)", Case Analysis (2023). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/685/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.