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ELCStruck OutNot stated in judgment· [2024] KEELC 3725 (KLR)

Kemboy Law Advocates v Narok County Government (Environment and Land Miscellaneous Application E018 of 2023) [2024] KEELC 3725 (KLR)

Environment and Land Court
25 April 2024
3,133 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 a county government's late attempt to challenge a lawyer's bill, confirming only the Taxing Officer can handle issues during taxation.

What this practically means

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Executive summary

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The County Government (client/applicant) filed a Notice of Motion dated 13th February 2024 seeking to arrest the ruling on the advocate/respondent's Bill of Costs of Kshs. 421,415.50 scheduled for 21st February 2024, and for leave to file its response to the Bill out of time, with the draft response and a notice of preliminary objection deemed duly filed. The applicant attributed the delay of over five months to prolonged procurement processes in appointing advocates and internal approvals, invoking its right to a fair hearing. The advocate/respondent opposed the application, contending that the court lacked jurisdiction because the matter was pending taxation 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 was inordinate, inexcusable and unexplained. The court framed two issues: jurisdiction and whether leave should issue. Relying on Owners of the Motor Vessel 'Lillian S', Sharma, Donholm Rahisi Stores and Kangethe & Mola Advocates, the court held that taxation of costs is a special jurisdiction reserved to the Taxing Officer and that the court cannot enter the arena of taxation until taxation is complete, absent a reference. Concluding it lacked jurisdiction, the court declined to address the second issue and struck out the application with costs to the advocate/respondent.

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 while taxation is pending before the Taxing Officer

Holding

The court lacks jurisdiction; taxation is a special jurisdiction reserved to the Taxing Officer, and the court may only intervene by way of a reference under Rule 11 of the Advocates (Remuneration) Order or after taxation is complete

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S', Sharma v Uhuru Highway Development Limited, Donholm Rahisi Stores and Kangethe & Mola Advocates, the court held that taxation of advocate-client costs is a special jurisdiction reserved to the Taxing Officer. Absent an appeal or reference under paragraphs 11(1) and 12 of the Advocates (Remuneration) Order, a judge cannot interfere with taxation before the Taxing Officer delivers a ruling.

p. 6
02

Whether the applicant should be granted leave to file its response out of time

Holding

Not determined, as the court declined to reach the second issue once it found it lacked jurisdiction

Reasoning

Having found the application incompetent for want of jurisdiction, the court held it would embarrass itself to proceed to deal with the discretionary extension-of-time question, which properly belongs to the Taxing Officer seized of the taxation.

p. 6

Legal principles established

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  • In matters of taxation, the Taxing Officer is properly clothed with jurisdiction to deal with issues arising during taxation proceedings, and the court's powers arise only after the decision on taxation has been made

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 and 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
  • 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
  • The Matter of Winding Up of Leisure Lodges Limited
    Winding Up Cause No. 28 of 1996
Jurisdiction invoked
Articles 159 of the Constitution of Kenya; 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 E018 of 2023) [2024] KEELC 3725 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3725/eng@2024-04-25

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