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ELCOtherNot stated in the judgment· [2024] KEELC 3433 (KLR)

Endesia v Odhiambo & another (Environment & Land Case 66 of 2013) [2024] KEELC 3433 (KLR)

Environment and Land Court
30 April 2024
JOJ. M. Onyango
1,065 words in judgment
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The bottom line

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An 18th-century-style deadline trap: this court threw out a challenge to taxed costs because it was filed one day too late under Kenya's Advocates (Remuneration) Order.

What this practically means

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Executive summary

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The court, Onyango J, at Eldoret, determined a preliminary objection dated 28th November 2022 lodged by the defendants against the plaintiff's application dated 22nd November 2022. The background was a Bill of Costs filed by the defendants on 24th March 2021, which the Taxing Master taxed on 21st October 2022 at Kshs. 254,762/-. Aggrieved, the plaintiff filed the application of 22nd November 2022 seeking, inter alia, stay of execution of the Certificate of Taxation of Costs and setting aside of the Certificate of Costs issued on 25th October 2022. The defendants opposed via the preliminary objection, contending that the application was fatally defective for non-compliance with Paragraphs 11(1) and (2) of the Advocates (Remuneration) Order and contrary to section 51(1) and (2) of the Advocates Act. The court framed a single issue: whether the preliminary objection had merit. Applying Mukisa Biscuits and Oraro v Mbaja on the nature of preliminary objections, the court found the objection raised pure points of law. Examining the chronology, the ruling was delivered on 21st October 2022, reasons were supplied on 18th November 2022, but the application was filed on 22nd November 2022 - outside the prescribed 14-day window - and no sufficient explanation for the delay was given. The court allowed the preliminary objection with costs and dismissed the plaintiff's application with costs to the respondents. Judgment delivered virtually on 30th April 2024.

Key legal issues

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01

Whether the Preliminary Objection dated 28th November 2022 has merit

Holding

The P.O is meritorious because the Applicant's reference application was filed outside the 14-day period prescribed by Paragraph 11(1) and (2) of the Advocates (Remuneration) Order, and no sufficient reason was advanced for the delay

Reasoning

The court applied the classic definition of a preliminary objection in Mukisa Biscuits and Oraro v Mbaja, then examined the chronology: the ruling on taxation was delivered on 21st October 2022, reasons were supplied on 18th November 2022, yet the application was only filed on 22nd November 2022, exceeding the 14-day window. No explanation was offered, so the objection on both the Remuneration Order and section 51 of the Advocates Act succeeded.

p. 3

Legal principles established

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  • An objection to a Taxing Master's decision under Paragraph 11(1) and (2) of the Advocates (Remuneration) Order must be lodged within fourteen days, and an application filed outside that window is fatally defective absent sufficient reason
  • A preliminary objection must raise a pure point of law and must not be blurred by contested facts

Court orders

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  1. 1.The Preliminary Objection dated 28th November 2022 is allowed with costs
  2. 2.The application dated 22nd November 2022 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 11(1) and (2)
  • Advocates ActSection 51(1) and (2)

Cases cited (2)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) E.A. 696
  • Oraro v Mbaja
    (2005) KLR 141
Jurisdiction invoked
Not expressly stated; the court exercised supervisory jurisdiction over a Taxing Master's decision under the Advocates Act and 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, "Endesia v Odhiambo & another (Environment & Land Case 66 of 2013) [2024] KEELC 3433 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3433/eng@2024-04-30

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