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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 3554 (KLR)

Mutai t/a Mutai Kipemoi Advocates v Murei (Environment and Land Miscellaneous Application E020 of 2023) [2024] KEELC 3554 (KLR)

Environment and Land Court
11 April 2024
MOM.C. Oundo
2,705 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a client's challenge to a taxed legal fees bill because it used the wrong procedure, so use the Advocates Remuneration Order, not Civil Procedure Rules.

What this practically means

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Executive summary

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The Applicant, a former client, moved the Environment and Land Court at Naivasha by Notice of Motion dated 2nd October 2023 seeking to set aside the taxation of 20th September 2023, by which his former advocate's Advocate-Client Bill of Costs was taxed at Ksh. 668,008/=. He argued that the taxation proceeded without service or his input, that the award was manifestly excessive and unjustified, that the advocate had not completed the work assigned (including enforcement of a consent order of Ksh. 2,172,500/= in ELC Suit No. 56 of 2017), and that the advocate had not first taxed a Party and Party Bill. The Respondent advocate maintained that the Bill had been served with a taxation notice, that the Applicant and his counsel appeared and sought adjournments and then failed to attend, and that the application was an attempt to evade paying fees. The court framed two issues: the competence of the application under paragraph 11 of the Advocates Remuneration Order, and whether the Taxing Officer erred in principle. Holding that challenges to a Taxing Master's decision lie only by a Reference by chamber summons under paragraph 11(2), and that the Applicant neither gave the required written notice of objection nor sought the Taxing Officer's reasons, the court found the application incompetent in limine. The application was struck out with costs; the court did not determine the merits of the alleged errors of principle.

Key legal issues

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01

Competence of an application challenging taxation filed as a Notice of Motion under the Civil Procedure Rules rather than a Reference by chamber summons under paragraph 11 of the Advocates Remuneration Order

Holding

The application was incompetent in limine; challenges to taxation must follow paragraph 11 of the Advocates Remuneration Order.

Reasoning

Paragraph 11(1) and (2) of the Advocates Remuneration Order prescribes a mandatory procedure: notice in writing to the Taxing Officer within fourteen days of the decision, obtaining reasons, and then a chamber summons to a judge within fourteen days of receipt of reasons. The Applicant instead invoked Sections 1A, 3, 3A, 63E & C, 38 and 40 of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules. Where clear procedures exist under the Advocates Act, a Notice of Motion under the Civil Procedure Rules is incompetent.

p. 4
02

Whether the Taxing Officer committed errors of principle

Holding

The court did not reach the merits; having found the application incompetent, the question of errors of principle fell away.

Reasoning

The court set out the First American Bank of Kenya principles governing interference with a Taxing Officer's discretion, including that interference requires an error of principle or a manifestly excessive award, and that the normal practice on error is remittal. However, because the Applicant had not complied with the notice and reasons procedure under paragraph 11, the application could not be sustained and was struck out.

p. 5

Legal principles established

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  • An order by the Taxing Master on an advocate/client bill of costs can only be challenged before a Judge by way of a Reference initiated by chamber summons under paragraph 11(2) of the Advocates Remuneration Order, not under the Civil Procedure Rules.
  • An objector to taxation must give notice in writing within fourteen days specifying the items objected to and seek the Taxing Officer's reasons before filing a Reference.

Court orders

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  1. 1.The Application dated 2nd October 2023 is struck out with costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3, 3A, 63E & C, 38 and 40
  • Civil Procedure RulesOrder 40 and Order 51
  • Advocates Remuneration OrderParagraph 11(1) and (2); Schedule 6 / Schedule VI Part B
  • Advocates ActNot specified

Cases cited (9)

  • Gicuki King'ara & Co Advocates vs. Mugoa Construction & Engineering Limited
    [2010] eKLR
  • First American Bank of Kenya vs. Shah and Others
    [2002] 1 EA 64
  • Premchand Raichand Limited vs. Quarry Services of East Africa Ltd (No. 3)
    [1972] EA 162
  • Arthur vs. Nyeri Electricity Undertaking
    [1961] EA 492
  • Joreth Limited vs. Kigano & Associates
    [2002] 1 EA 92
  • Joreth Limited vs Kigano & Another
    [2002] EA 90
  • Lubulellah & Associates vs Baranyii Brokers Limited & 2 Others
    [2014] eKLR
  • Paul Imison & Another vs Jodad Investments Limited
    [2014] eKLR
  • Machira & Co Advocates vs Arthur K. Magugu & Margaret Wairimu Magugu
    CA 199/2002 [2012] eKLR
Jurisdiction invoked
Sections 1A, 3, 3A, 63E & C, 38 and 40 of the Civil Procedure Act and Order 40 and 51 of the Civil Procedure Rules (as invoked by the Applicant); court determines competence under paragraph 11 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, "Mutai t/a Mutai Kipemoi Advocates v Murei (Environment and Land Miscellaneous Application E020 of 2023) [2024] KEELC 3554 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3554/eng@2024-04-11

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