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ELCDismissedMiscellaneous Application dated 27th February 2023 (re Nakuru ELC Misc. App No. E018 of 2022)· [2024] KEELC 1747 (KLR)

Dorothy Wanjiku Waweru v Prof. Michael Wabwile T/A Wabwile & Co. Advocates

Environment and Land Court
11 April 2024
LOL. A. Omollo
3,012 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court refused to excuse an 85-day delay in challenging a KSh 2.8 million advocate-client fee certificate, dismissing the application with costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) on a Notice of Motion dated 27th February 2023 by Dorothy Wanjiku Waweru seeking leave to lodge a reference out of time against a taxing officer's ruling of 27th October 2022 and to stay, set aside, vary or review that ruling together with a Certificate of Costs of Kshs. 2,831,861.60 issued on 24th November 2022 in Nakuru ELC Misc. App No. E018 of 2022 (Wabwile & Co. Advocates v Waweru). The applicant contended she was never served with taxation documents, only learned of the ruling when served with an application to adopt the certificate as judgment, and that the fees were inordinately high given an agreement on fees, a recorded consent on rental income, and fees already paid to prior counsel. The respondent opposed, arguing the certificate had been adopted as judgment rendering the court functus officio, and that the applicant was indolent. The court framed three issues. Applying the extension-of-time principles from County Government of Tana River v Miller & Co. Advocates and related Court of Appeal authorities, the court found the applicant admitted becoming aware of the decision on 5th December 2022 but filed 85 days later, on 1st March 2023, without explaining that delay. It declined to enlarge time and, having done so, found it unnecessary to determine the setting-aside prayer. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether to enlarge time to file a reference against a taxing officer's decision

Holding

The court declined to enlarge time; the applicant was aware of the decision on 5th December 2022 but filed 85 days later without explanation, and the delay was inordinate with no sufficient cause shown

Reasoning

Paragraph 11 of the Advocates Remuneration Order allows the High Court to enlarge time. Guided by authority, the court considered the length of and reasons for delay. The applicant admitted awareness of the decision on 5th December 2022 but only filed on 1st March 2023, an 85-day gap for which no explanation was offered, hence discretion was not exercised in her favour.

p. 7
02

Whether to set aside the taxing officer's ruling and certificate of costs

Holding

Not determined, being unnecessary following the refusal of extension of time

Reasoning

The court reasoned that since the application for enlargement of time had failed, the substratum of the prayer to set aside the ruling and certificate of costs fell away, and it was unnecessary to pronounce itself on that issue.

p. 7

Legal principles established

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  • The decision to extend time is discretionary and is guided by the length of and reasons for delay, chances of the intended reference succeeding, and prejudice to the respondent
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The application dated 27th February 2023 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Act (Cap. 21)Sections 1A, 3A, 3B, 27, 79G
  • Civil Procedure RulesOrder 50 Rule 6
  • Advocates Remuneration OrderParagraph 11(1),(2),(3),(4); Part B Schedule VI

Cases cited (5)

  • County Government of Tana River v Miller and Company Advocates
    [2021] eKLR
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No. Nai 26 of 2004
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Sections 1A, 3B, 3A and 79G of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules; Paragraph 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, "Dorothy Wanjiku Waweru v Prof. Michael Wabwile T/A Wabwile & Co. Advocates", Case Analysis (2024). Miscellaneous Application dated 27th February 2023 (re Nakuru ELC Misc. App No. E018 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1747/eng@2024-04-11

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