Ng'era (Suing as the personal representative of Joseph Boro Ng’era (Deceased) v Sunbird Lodge Limited (Environment & Land Case 75 of 2017) [2024] KEELC 849 (KLR)
The bottom line
#The High Court in Nakuru struck out a late costs challenge because the defendant skipped the mandatory objection and filing deadlines under the Advocates Remuneration Order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the reference was filed within time
- 2.Whether the court should set aside the taxing officer's ruling delivered on 12th October 2023
Key legal issues
#Compliance with the procedure under paragraph 11 of the Advocates Remuneration Order
The defendant did not give the required notice of objection to the taxing officer and no evidence of such notice was shown
Paragraph 11(1) requires a party dissatisfied with a taxing decision to give written notice of the objected items within fourteen days. The ruling was delivered on 12th October 2023 and there was no evidence such notice was issued or filed. While Ahmed Nasir Abdikadir excuses seeking reasons where they are already in the ruling, a party relying on that decision should still explain the timing of its reference.
Filing of the reference out of time
The reference filed on 30th October 2023 was eighteen days after the ruling, out of time, and no enlargement of time was sought under paragraph 11(4)
The reference ought to have been filed by 26th October 2023. Paragraph 11(4) empowers the High Court to enlarge time on a chamber summons even after expiry, but the defendant made no such application and gave no reasons for the delay. The reference was therefore incompetent.
Legal principles established
#- A party objecting to a taxing officer's decision must, under paragraph 11(1) of the Advocates Remuneration Order, give notice in writing to the taxing officer of the objected items within fourteen days and file the reference within fourteen days of receipt of reasons; a reference filed out of time without an enlargement-of-time application is incompetent
- Where reasons for taxation are already contained in the considered ruling, there is no need to seek further reasons under paragraph 11(2)
Court orders
#- 1.The defendant's application dated 30th October 2023 is struck out for being incompetent
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Taxing Officer (Hon. Rose Ombata)
- Plaintif/Respondent's amended party & party Bill of Costs dated 14th August 2023
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order (objections to taxation and enlargement of time by the High Court)
Relief refused
#Setting aside/vacating the taxing officer's decision of 12th October 2023
The reference was filed out of time (18 days after the ruling) with no notice of objection to the taxing officer and no application to enlarge time
Fresh taxation of the party & party bill of costs by a different taxing officer
Application incompetent for non-compliance with paragraph 11 of the Advocates Remuneration Order
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the defendant's application dated 30th October 2023 is stuck out for being incompetent. Each party to bear their own costs.
This was clearly out of time and no application to enlarge time was sought by the defendant as provided under paragraph 11 (4) of the Advocates Remuneration Order
The said rule was not indeed to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.
Issues in the judgment
#The judgment never expressly names the plaintiff or defendant parties or the parent suit number, and the court/station is only identifiable from the delivery clause ('AT NAKURU') and the coram; the precise court (ELC or general High Court division) is not stated
Typographical error in the final order - 'stuck out' for 'struck out'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng'era (Suing as the personal representative of Joseph Boro Ng’era (Deceased) v Sunbird Lodge Limited (Environment & Land Case 75 of 2017) [2024] KEELC 849 (KLR)", Case Analysis (2024). Chamber Summons dated 30th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/849/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.