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ELCDismissedEnvironment & Land Miscellaneous Case E039 of 2021· [2023] KEELC 17651 (KLR)

Njeru, Nyaga & Co Advocates v Thome V Residents Welfare Association

Environment and Land Court
25 May 2023
MMM.D. Mwangi
2,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a residents' association's late challenge to an advocate's fee bill because it never explained its 65-day delay.

What this practically means

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Executive summary

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The Client, Thome V Residents Welfare Association, applied by Chamber Summons dated 28th July 2022 for enlargement of time to file a reference out of time against a taxation ruling, and for the setting aside of the ruling taxing the Advocate's Bill of Costs at Kshs. 845,486. The Client argued that the Taxing Master failed to give reasons, mixed up the hearing of its objection with the taxation, and awarded an excessive instruction fee; delay was attributed to the late availing of reasons. The Advocate opposed, contending the reference was filed out of time, that the application offended Section 45(2) of the Advocates Act, and that the supporting affidavit was improperly sworn by the Client's advocate on contentious matters. M.D. Mwangi J framed two issues: entitlement to enlargement of time, and, dependently, the merits of the reference. Applying Supreme Court authority on extension of time, the court found the delay of about 65 days unexplained: the Client never stated when it received the reasons and ruling, and the impugned ruling itself contained the reasons for taxation, so no further request was necessary. The prayer for extension of time therefore failed, and the court declined to address the merits of the reference. The Chamber Summons was dismissed with costs to the Advocate/Respondent.

Key legal issues

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01

Whether the Client was entitled to enlargement of time to file a reference against the taxation

Holding

The prayer failed because the delay of about 65 days was not satisfactorily explained and the reasons for taxation were already contained in the impugned ruling

Reasoning

The court applied the Supreme Court's extension-of-time principles from County Executive of Kisumu and Fahim Yasin Twaha: the whole period of delay must be declared and explained. The Client conceded non-compliance with Paragraph 11(1) and (2), attributed delay to non-availability of reasons, but never stated when it received the reasons and ruling. Since the ruling itself contained the reasons, no further request was necessary, so the explanation for delay collapsed.

02

Whether the reference had merits to justify setting aside the taxation ruling

Holding

Not determined, as it was dependent on the extension of time prayer which failed

Reasoning

The court framed the second issue as dependent on the first. Having found no basis to enlarge time, the court declined to address the merits of the reference, leaving the Taxing Master's ruling of 19th May 2022 intact and the reference effectively stillborn.

p. 6

Legal principles established

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  • Where the reasons for taxation on the disputed items are already contained in the considered ruling, there is no need to seek further reasons under rule 11(2) of the Advocates Remuneration Order
  • Extension of time is an equitable remedy available only to a deserving party, and the applicant bears the burden of explaining the whole period of delay

Court orders

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  1. 1.The Client/Applicant's Chamber Summons dated 28th July 2022 is dismissed with costs to the Advocate/Respondent.

Authorities

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Legislation

  • Advocates ActSection 45; Section 45(2)
  • Advocates Remuneration OrderParagraph 11(1), (2), (3), (4)
  • Civil Procedure RulesOrder 19 Rule 2; Order 19 Rule 3(1)
  • Advocates Practice RulesRule 9

Cases cited (6)

  • County Executive of Kisumu v County Government of Kisumu and 8 Others
    [2017] eKLR

    Principles guiding the court's discretion to extend time

  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others
    [2015] eKLR

    Restatement of general principles governing extension of time

  • George Kagima Kariuki & 2 Others vs George M. Gichimu & 2 Others
    [2014] eKLR

    Delay must be explained; plausible explanation unlocks discretionary favour

  • Stanley Kahoro Mwangi & 2 Others v Kanyamwi Trading Company Limited
    [2015] eKLR

    Satisfactory explanation for delay is key to extension of time

  • Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2)
    (2006) 1 EA 5

    No need to seek further reasons where reasons are contained in the ruling

  • Evans Thiga Gaturu, Advocate vs. Kenya Commercial Bank Limited
    [2012] eKLR

    Where reasons appear on the face of the decision, further reasons need not be furnished

Jurisdiction invoked
Paragraph 11(4) of the Advocates Remuneration Order (High Court's power to enlarge time fixed by subparagraphs (1) and (2))

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, "Njeru, Nyaga & Co Advocates v Thome V Residents Welfare Association", Case Analysis (2023). Environment & Land Miscellaneous Case E039 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17651/eng@2023-05-25

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