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ELCDismissedMiscellaneous Application E003 of 2023· [2023] KEELC 20950 (KLR)

Owuor v Okatch

Environment and Land Court of Kenya
24 October 2023
2,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a bid to challenge a taxed legal bill and land-transfer consent, ruling the applicant waited nearly a year too long.

What this practically means

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Executive summary

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The defendant, Henry Okatch, applied by chamber summons dated 7th July 2023 for leave to file a reference out of time against a taxing master's decision, setting aside of a certificate of costs of Kshs. 598,255/-, setting aside of a consent dated 6th June 2023 under which part of his land (L.R. No. Kasgunga/Kamreri/5438) was to be transferred in satisfaction of a decree, and stay or setting aside of warrants of attachment and proclamation. He alleged the bill of costs was never served on him, that the taxed amount was excessive, and that the consent was procured by fraud and collusion, the notice to act in person having been drafted by the plaintiff's advocate who stood to benefit; he also pleaded that he is blind. The plaintiff opposed, arguing abuse of process, want of jurisdiction over a consent filed at the trial court, and that the decree had already been executed on 27th July 2023. G.M.A Ongondo J identified two issues: whether the application was merited and costs. The court held the delay in seeking leave to file a reference out of time - from 5th August 2022, when the applicant learnt of the bill, to 7th July 2023 - was inordinate and unexplained, and refused leave; consequently it could not interfere with the taxation. On the consent, the court held it lacked jurisdiction since the consent was filed at the trial court in satisfaction of that court's decree and the applicant had withdrawn Homa Bay ELC Appeal No. E006 of 2023. The application was dismissed with costs to the plaintiff under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Whether leave should be granted to file a reference out of time under rule 11(4) of the Advocates Remuneration Order

Holding

Leave refused; the delay from 5th August 2022 (when the applicant learnt of the bill) to 7th July 2023 was inordinate with no sufficient justification

Reasoning

The court applied the rule 11(4) discretion guided by the factors in Paul Wanjohi Mathenge: period of delay, reasons for delay, prejudice, and public importance. The applicant knew of the taxation on 5th August 2022 but filed on 7th July 2023, nearly a year later, without adequate explanation. Article 159(2)(b) that justice shall not be delayed reinforced the refusal.

p. 5
02

Whether the court could set aside the consent dated 6th June 2023

Holding

The court held it lacked jurisdiction because the consent was filed at the trial court in satisfaction of that court's decree and no appeal challenged it

Reasoning

Although the general law on impeaching consent orders (fraud, collusion, policy of the court) was recited, the court found the consent belonged to the trial court's decree. The applicant had withdrawn Homa Bay ELC Appeal No. E006 of 2023 by consent dated 31st May 2023, so no challenge to the consent's validity was pending before this court.

p. 6
03

Whether the taxing master's decision and certificate of costs should be set aside or the bill re-taxed

Holding

Refused; without a competent reference the court cannot interfere with the bill of costs

Reasoning

Relying on Donholm Rahisi Stores, taxation is a special jurisdiction of the taxing officer, and the court's only route is a reference under rule 11. Since leave to file a reference out of time was refused, the challenge to the taxation of the bill dated 7th April 2021 necessarily failed.

p. 5

Legal principles established

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  • Taxation of costs is a special jurisdiction reserved to the taxing officer; the court intervenes only by way of reference under rule 11 of the Advocates Remuneration Order
  • A court will not interfere with a consent judgment except on grounds such as fraud, collusion or agreement contrary to the policy of the court
  • Where a court lacks jurisdiction it must down tools

Court orders

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  1. 1.The chamber summons dated 7th July 2023 is dismissed
  2. 2.Prayer (b) for leave for Kenja and Company Advocates to come on record declared overtaken by events
  3. 3.Costs of the application to be borne by the applicant
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; sections 1A, 1B and 3A of the Civil Procedure Act; rule 11(4) of the Advocates Remuneration Order

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, "Owuor v Okatch", Case Analysis (2023). Miscellaneous Application E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20950/eng@2023-10-24

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