Njuguna & Partners Advocates v Wanjiru & 2 others (Sued as the administrators of the Estate of Jemimah Njeri Njoroge (Deceased)) (Miscellaneous Application E007 of 2021) [2023] KEELC 797 (KLR)
The bottom line
#A Kenyan court set aside a lawyer's taxed costs after a registry oversight left the client unheard, showing courts will fix procedural failures.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of preliminary objection dated November 26, 2021 was ignored and the effect thereon
The notice of preliminary objection was on the record but was never assessed for fees and the respondent was never notified, so the Deputy Registrar was unaware of it and proceeded to tax; this was a serious registry oversight
The court perused the record and found the preliminary objection filed on November 29, 2021 bore no assessment of fees or payment receipt. Emails of November 26, 2021 and April 19, 2022 requesting an invoice to enable payment went unanswered. The Deputy Registrar, unaware of the pending objection, taxed the bill and issued a certificate, condemning the respondent unheard.
Whether the court can set aside the ruling of September 7, 2022 and stay the certificate of taxation of September 27, 2022
Yes - exercising inherent jurisdiction, the court declared the proceedings from January 24, 2022 a mistrial and set aside both the ruling and the certificate of taxation pending hearing of the preliminary objection
Although the respondent had not followed the Rule 11 procedure (no notice of objection, no enlargement of time sought), the court found the procedural flaw of failing to notify the respondent of fees payable and issuance of a mention notice serious enough that it could not close its eyes. The consequences of the flaw would be as serious as condemning a respondent unheard, warranting intervention to preserve judicial integrity.
Whether the application dated October 11, 2022 (seeking entry of judgment on taxed costs) has merit
The court declined to determine it at this stage as it would be unfair once the ruling and certificate of taxation had been set aside
The application for judgment on the taxed sum was premised on a certificate of taxation now set aside. With the underlying ruling subject to the pending preliminary objection, the court held it would be unfair to enter judgment at this stage and deferred determination pending the objection's hearing.
Legal principles established
#- Where a party is dissatisfied with the decision of a taxing officer, the correct route is the procedure under Rule 11 of the Advocates Remuneration Order.
- The court may exercise its inherent jurisdiction, informed by Article 159(2)(d) and the oxygen principles, to remedy a procedural flaw that would result in injustice.
- A court has a duty to act to remedy an irregularity that may result in injustice, to preserve the integrity of the judicial process and the rules of natural justice.
Court orders
#- 1.Declared any proceedings from January 24, 2022 a mistrial as a result of the serious oversight – failure to notify the respondent of the fees payable and issuance of a mention notice.
- 2.Set aside the ruling dated September 7, 2022 together with the certificate of taxation dated September 27, 2022 pending the hearing and determination of the notice of preliminary objection.
- 3.Directed the Deputy Registrar to ensure the notice of preliminary objection dated November 26, 2021 is assessed and an invoice sent to the respondent within 3 days from the date of the ruling.
- 4.Ordered the respondent to make payment of the assessed amount within seven days thereof.
- 5.Directed that the matter be mentioned before the Deputy Registrar on March 2, 2023 as to the hearing and determination of the preliminary objection.
- 6.Made no orders as to costs.
- Jurisdiction invoked
- Inherent jurisdiction of the High Court read with Rule 11 of the Advocates Remuneration Order and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna & Partners Advocates v Wanjiru & 2 others (Sued as the administrators of the Estate of Jemimah Njeri Njoroge (Deceased)) (Miscellaneous Application E007 of 2021) [2023] KEELC 797 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/797/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.