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ELCStruck OutNot stated in judgment· [2024] KEELC 3364 (KLR)

Kemboy Law Advocates v Narok County Government (Environment and Land Miscellaneous Application E016 of 2023) [2024] KEELC 3364 (KLR)

Environment and Land Court
25 April 2024
3,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out Narok County Government's attempt to challenge a lawyer's bill, ruling only the Taxing Officer handles disputes during ongoing taxation.

What this practically means

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Executive summary

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This was a Notice of Motion dated 13th February 2024 filed by the client/applicant, a County Government, under Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The applicant sought to arrest a ruling on the advocate/respondent's Bill of Costs of Kshs. 37,050,580.30 scheduled for 21st February 2024, and sought leave to file its response to the Bill out of time, with the draft response and notice of preliminary objection deemed filed. The delay was attributed to prolonged procurement processes in appointing advocates and internal approvals within the County Government. The advocate/respondent opposed, contending inter alia that the court lacked jurisdiction because the matter was pending before the Taxing Officer, that there was no appeal or reference under paragraphs 11(1) and 12 of the Advocates (Remuneration) Order, and that the delay of over five months was inordinate and inexcusable. The court framed two issues: its jurisdiction, and whether leave should issue. Relying on the Lillian S principle, Sharma, Donholm Rahisi Stores and Kangethe & Mola Advocates, the court held that taxation is a special jurisdiction of the Taxing Officer, that the court's powers arise only after taxation is complete, and that absent a reference it could not interfere. The application was struck out with costs to the advocate/respondent. The second issue was not reached, as determining it would embarrass the court given the lack of jurisdiction.

Key legal issues

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01

Whether the court has jurisdiction to entertain an application for leave to file a response to a Bill of Costs pending before the Taxing Officer

Holding

The court lacked jurisdiction; matters arising during taxation are for the Taxing Officer and the court's powers arise only after the taxation decision.

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S', Sharma v Uhuru Highway Development Ltd, Donholm Rahisi Stores and Kangethe & Mola Advocates, the court held that taxation is a special jurisdiction reserved to the Taxing Officer under the Advocates (Remuneration) Order. Absent an appeal or reference under paragraphs 11(1) and 12, the judge cannot enter the arena of taxation. The application, which sought to interfere with pending taxation, was therefore for the Taxing Officer.

p. 6

Legal principles established

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  • In matters of taxation, the Taxing Officer is properly clothed with jurisdiction over issues arising during taxation proceedings, and the court cannot interfere until taxation is complete.

Court orders

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  1. 1.The Notice of Motion Application dated 13th February, 2024 is struck out with costs to the advocate/respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticles 50, 24
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Advocates ActSection 48
  • Advocates (Remuneration) OrderParagraphs 11(1) and 12

Cases cited (24)

  • Otieno Ragot & Company Advocates v Kenya Airports Authority
    [2015] eKLR
  • Sharma v Uhuru Highway Development Limited
    [2001] 2 EA 531
  • C.B. Gor & Gor v Oriental Commercial Bank Limited (formerly known as Delphis Bank Limited)
    [2018] eKLR
  • Hezekiah W. Gichohi v Uhuru Highway Development & Others
    [2011] eKLR
  • Stanley Mwandoe Righa v Braimoh Joseph Mburu
    [2014] eKLR
  • Lubullellah & Associates Advocates v Nasser Ahmed T/A Airtime Business Solutions
    [2010] eKLR
  • Munikah & Company Advocates v Heri Development Limited & 3 Others
    [2019] eKLR
  • Phoenix of E.A. Assurance Company Limited v M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Macfoy v United Africa Company Limited
    [1961] 3 All ER 1169
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR)
  • Ashmore v Corp of Lloyd's
    [1992] All ER 486
  • Banque Financiere de la Cile SA v Westgate Insurance Co. Ltd
    [1990] 2 All ER 947
  • Hunter v Chief Constable of the West Midlands Police & Others
    [1981] 3 All ER 727
  • Harriet Otieno & 2 Others v My Jobs Eye Kenya Limited
    [2017] eKLR
  • Margaret Njoki Kamau v Reuben Ndivo Mwangi
    [2021] eKLR
  • Landmark Freight Services Limited v Zakhem International Limited
    [2021] eKLR
  • The Matter of Winding Up of Leisure Lodges Limited
    Winding Up Cause No. 28 of 1996
  • Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others
    [2019] eKLR
  • James Ngara Mukiri & Another v Josephine Wangari Mukiri
    [2013] eKLR
  • Paul Njage Njeru v Karija K Mugambi
    [2021] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Donholm Rahisi Stores v East African Portland Cement Limited
    [2005] eKLR
  • Kangethe & Mola Advocates v Corporate Insurance Company Limited
    [2021] eKLR
Jurisdiction invoked
Articles 159 of the Constitution; Sections 1A, 1B, 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules (as invoked by the applicant)

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, "Kemboy Law Advocates v Narok County Government (Environment and Land Miscellaneous Application E016 of 2023) [2024] KEELC 3364 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3364/eng@2024-04-25

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