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ELCAllowedChamber Summons dated 28th July 2023· [2024] KEELC 3657 (KLR)

Sammy Mathai Maina t/a Mathai Maina & Co Advocates v Wesonga (Miscellaneous Reference Application 32 of 2023) [2024] KEELC 3657 (KLR)

High Court of Kenya
29 April 2024
2,830 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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Kenya's High Court allowed a lawyer to challenge a taxation ruling late, confirming courts will excuse reasonable delay and won't demand ritual over substance.

What this practically means

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Executive summary

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This is a ruling of the High Court at Eldoret (J.M. Onyango, J) on a chamber summons dated 28th July 2023 brought under Rule 11(2) of the Advocates Remuneration Order by Charles Duke Nyamweya, seeking leave to file a taxation reference out of time against a taxing officer's ruling of 12th May 2023, a fresh taxation of items 1(a) and 1(b), a stay of execution of the ruling for payment of Kshs.526,500/-, and deeming of the objection notice as filed. The application was opposed by Sammy Mathai Maina, who contended that the taxing master properly exercised discretion, that the applicant never sought reasons from the taxing master, and that the application was therefore defective. The court framed two issues: whether extension of time should be granted and whether execution should be stayed. Applying First American Bank v Gulab P. Shah, the court found the 77-day delay explained because the ruling was delivered in the applicant's absence, and that the respondent, as decree holder, would suffer no prejudice. Relying on Ahmed Nassir v National Bank of Kenya, the court held the application was not incompetent since the taxing master's ruling contained reasons. On stay, applying RWW v EKW, the court found a substantial question for the reference and substantial loss to the applicant. The application was allowed: leave to file the reference out of time was granted, and prayers 3, 4 and 5 were granted. Costs were to be included in the taxation.

Key legal issues

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01

Extension of time to file a taxation reference out of time

Holding

Leave was granted; the delay of 77 calendar days was explained because the ruling was delivered in the applicant's absence, the delay was not inordinate, and the respondent would suffer no prejudice as he can still execute if the reference fails.

Reasoning

Applying First American Bank v Gulab P. Shah conditions, the court found the applicant's explanation reasonable: the court record confirmed the ruling of 12th May 2023 was delivered in the absence of the applicant's counsel. The respondent, being the decree holder, would not be prejudiced since execution can proceed if the reference is unsuccessful. The applicant demonstrated sufficient cause, and the court exercised its discretion under Rule 11(4) to enlarge time.

p. 5
02

Whether the application was incompetent for failure to attach reasons of the Taxing Master

Holding

The application was not incompetent; the Taxing Master's ruling itself contained reasons for the taxation, and the notice of objection stated the grounds, so no further reasons needed to be sought.

Reasoning

Guided by Ahmed Nassir v National Bank of Kenya, the court noted that where reasons are already contained in the considered ruling, Rule 11(2) need not be ritualistically observed. The ruling annexed to the respondent's documents showed the Taxing Master explained how he arrived at Kshs.526,500/- and his view that the value of the subject matter could be ascertained. The notice of objection also set out the grounds, rendering the application competent.

p. 5
03

Stay of execution of the certificate of costs pending the reference

Holding

Stay granted; the intended reference raises a substantial question and the applicant would suffer substantial loss if the respondent proceeds with execution.

Reasoning

Applying the principles in RWW v EKW, the court balanced the applicant's right to file a reference against the decree holder's right to the fruits of judgment. It found a substantial question to be adjudicated and that the reference would be rendered nugatory if execution proceeded. The applicant stood to suffer substantial loss, warranting preservation of the subject matter pending determination of the reference.

p. 6

Legal principles established

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  • Where the reasons for a taxation decision are already contained in the considered ruling, there is no need for an objector to seek further reasons from the taxing officer before filing a reference.
  • Rule 11(4) of the Advocates Remuneration Order empowers the court, in its discretion, to enlarge time for taking steps under Rule 11 even where the time sought to be enlarged has expired.

Court orders

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  1. 1.The Applicant is granted leave to file their taxation reference out of time against the ruling delivered on 12th May 2023
  2. 2.Prayers 3, 4 and 5 of the application dated 28th July 2023 are granted, including stay of execution of the ruling for payment of Kshs.526,500/-, deeming the notice of objection as duly filed and served, and costs to be included in the taxation

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), (2), (3), (4)
  • Advocates ActSection 11 paragraph 11
  • Civil Procedure RulesOrder 42 Rule 6
  • Advocates Remuneration OrderSchedule 6(1); Schedule B scale of fees

Cases cited (14)

  • George Kagina Kariuki & 2 others v George M. Gichimu & 2 Others
    (2014) eKLR
  • Nicholas Stephen Okaka and Charity Njoki Muigai v Alfred Waga Wesonga
    Civil Appeal 3 of 2022
  • Michira & Co. Advocates v Magugu
    (2002)
  • Gacau Kariuki Co. Advocates v Allan Mbugua Ng'ang'a
    (2012) eKLR
  • Kaminyori & Co. Advocates v Development Bank of Kenya Limited
    (2015) eKLR
  • Charles Nyanga Njeru v Independent Electoral & Boundaries Commission
    (2015) eKLR
  • Evans Thinga Gaturu Advocate v Kenya Commercial Bank
  • Muriu Mungai & Co. Advocates v New Kenya Co-operative Creameries Limited Nairobi
    (2012) eKLR
  • Elijah Ireri T/a Ireri & Co. Advocates v County Government of Embu
    (2021) eKLR
  • Kamunyore & Co. Advocates v Development Bank of Kenya Limited
    (2015)
  • Jareth Limited v Kigano Associates Advocates
    (2002)
  • First American Bank of Kenya Ltd vs. Gulab P. Shah & 2 others
    Nairobi (Milimani) HCCC No. 2255 of 2000 {2002} 1 EA 65
  • Ahmed Nassir –Vs- National Bank of Kenya Ltd
    [2006] E.A
  • RWW Vs. EKW
    (2019) eKLR
Jurisdiction invoked
Rule 11(4) of the Advocates Remuneration Order - power of the High Court to enlarge time for filing a taxation objection/reference

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, "Sammy Mathai Maina t/a Mathai Maina & Co Advocates v Wesonga (Miscellaneous Reference Application 32 of 2023) [2024] KEELC 3657 (KLR)", Case Analysis (2024). Chamber Summons dated 28th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3657/eng@2024-04-29

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