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ELCDismissedNotice of Motion dated 15th June 2022 and Notice of Motion dated 6th June 2023· [2024] KEELC 3242 (KLR)

Mutyaene v Miriti & 4 others (Environment & Land Case E002 of 2020) [2024] KEELC 3242 (KLR)

Environment and Land Court
7 March 2024
CYC. Yano
4,419 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed all of a litigant's attempts to overturn a taxed advocate's bill of costs, confirming that specific procedures must be strictly followed.

What this practically means

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Executive summary

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The plaintiff, acting in person, filed two notices of motion: one dated 15th June 2022 seeking stay of execution of a certificate of costs dated 26th May 2022, leave to file a taxation reference out of time against the taxing officer's ruling of 13th May 2022, and setting aside and re-taxation of the advocates' bill of costs; and another dated 6th June 2023 seeking leave to amend the earlier application and chamber summons to incorporate new material from the Land Surveyors Board and Institution of Surveyors of Kenya impugning the 2nd respondent's identity and professional qualifications, and an order that the 1st and 2nd respondents produce their national identity cards. The respondents opposed, arguing the applications masked an appeal or review, the court was functus officio, the identity concerns were a red herring, and the only real difference on taxation was Kshs. 360/= which they conceded. The court framed five issues and resolved all against the applicant: amendment was refused for inordinate unexplained delay and because the proposals were evidential; the identity-document order was refused since the applicant had not used the Access to Information Act nor reported suspected offences to investigative agencies, and the order would intrude on privacy; stay was refused as no substantial loss was shown; extension of time for a reference was refused because the applicant's claimed medical annexure did not exist and he was found to have misled the court; and setting aside the taxation was incurably incompetent, grievances against a taxing officer lying only by reference under paragraph 11 of the Advocates Remuneration Order. Both applications were dismissed with costs to the 1st and 2nd respondents.

Key legal issues

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01

Amendment of pleadings after inordinate delay

Holding

Leave to amend refused; the amendments sought were new evidential material which should have been introduced by way of further or supplementary affidavit, and the one-year unexplained delay and introduction of a new ground of defence weighed against the amendment.

Reasoning

The court applied the principle that amendments are allowed where necessary to determine the real question, without undue delay, without introducing a new or inconsistent cause of action, and without injustice. Here the amendment was sought about a year after the original application with no explanation, and the new material concerned evidence (respondents' identity and qualifications) rather than pleadings, so the discretion was not exercised in the applicant's favour.

p. 6
02

Discovery of respondents' identity documents

Holding

Refused. The applicant had not exhausted the Access to Information Act route nor reported suspected offences to investigative agencies; the court will not look for evidence for parties.

Reasoning

Article 35 access to information is operationalised through the Access to Information Act, which was not invoked. Suspected offences (fraudulent identity or qualifications) fall within the investigative mandate of the police under the National Police Service Act. Compelling production of ID cards would be an unwarranted intrusion into privacy and bodily integrity.

p. 7
03

Stay of execution pending appeal

Holding

Refused for failure to demonstrate substantial loss, the dispute being over Kshs. 360/= which the respondents conceded.

Reasoning

Under Order 42 rule 6 the applicant had to show substantial loss, no undue delay and security. The only difference identified between the applicant's and taxing officer's figures was Kshs. 360/=, which respondents conceded; no inability to refund was shown, so neither substantial loss nor nugatory appeal was established.

p. 7
04

Extension of time to file a taxation reference

Holding

Refused because the applicant's explanation for the delay (medical indisposition) was false - the medical chit cited was never annexed.

Reasoning

Paragraph 11 of the Advocates Remuneration Order permits enlargement of the 14-day period, but the court must be satisfied there is no inexcusable delay. The applicant claimed illness from April 2022 and cited annexure RKM-5, but no such annexure existed, leading the court to find he was untruthful and undeserving of discretionary relief.

05

Setting aside taxation and certificate of costs

Holding

Incurably incompetent; complaints against a taxing officer lie only by reference under paragraph 11 of the Advocates Remuneration Order.

Reasoning

Following Machira & Co. Advocates v Magugu, any grievance about a taxing officer's decision must be ventilated by way of a reference to a judge. What was before the court was not a reference but an application to set aside, and where a specific procedure exists it must be strictly followed.

p. 8

Legal principles established

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  • Grievances against a taxing officer's decision, whether on law or on taxation of items, must be raised by a reference to a judge under paragraph 11 of the Advocates Remuneration Order, not by an application to set aside the decision.
  • Where a specific procedure is provided for addressing a grievance, that procedure must be strictly complied with.
  • A party who deliberately misleads the court under oath does not deserve the court's discretion.

Court orders

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  1. 1.The Notice of Motion dated 6th June, 2023 is dismissed
  2. 2.The Notice of Motion dated 15th June, 2022 is dismissed
  3. 3.Costs of the applications awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Advocates (Remuneration) OrderRules 11, 13A, 16; paragraph 11
  • Environment and Land Court ActSections 3, 13, 19
  • Practice Directions on Proceedings of the Environment and Land CourtRules 1, 10
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 22, 27, 80, 95, 99, 100
  • Civil Procedure RulesOrder 22 rule 25; Order 42 rule 6; Order 45; Order 51 rules 1, 2, 14(1); Order 8 rules 3 and 5
  • Constitution of KenyaArticles 22, 23, 25(c), 27, 35, 35(2), 40, 43, 46, 47, 48, 50(1), 159(2), 258, 259
  • Access to Information ActGeneral framework
  • National Police Service ActSections 24, 35(G)

Cases cited (5)

  • Joseph S. Wafula Versus Elena Chepkurgat Talam (Sued as the Legal Administrator of the estate of the late Kiptalam Arap Kogo
    (2019) eKLR
  • Central Kenya Limited Versus Trust Bank Limited
    (2000) 2EA 365
  • George Gikubu Mbuthia Versus Consolidated Bank of Kenya Limited & Another
    (2016) eKLR
  • Rubina Ahmed & 3 others Versus Guardian Bank Limited (sued in its capacity as a Successor in title to First National Finance Bank Limited)
    [2019] eKLR
  • Machira & Co. Advocates Versus Magugu
    (2002) 2EA 428
Jurisdiction invoked
Rules 11, 13A and 16 of the Advocates (Remuneration) Order; Sections 3, 13 and 19 of the Environment and Land Court Act; Civil Procedure Act and Rules

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, "Mutyaene v Miriti & 4 others (Environment & Land Case E002 of 2020) [2024] KEELC 3242 (KLR)", Case Analysis (2024). Notice of Motion dated 15th June 2022 and Notice of Motion dated 6th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3242/eng@2024-03-07

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