Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedReference dated 14th November 2023 (arising from Murang'a ELC No. 47 of 2017)· [2024] KEELC 4041 (KLR)

Njoroge ((Suing as the Personal Representative of Angelo Kanyuanjohi Macharia)) v Nyingi & another (Sued as the Legal and Personal Representatives of the Estate of the Late Tirus Nyingi Ngahu – Deceased) (Environment and Land Miscellaneous Application E006 of 2023) [2024] KEELC 4041 (KLR)

Environment and Land Court
9 May 2024
3,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed a late, improperly filed challenge to Kshs 744,805 in taxed costs, confirming strict 14-day deadlines.

What this practically means

#

Executive summary

#
By a Chamber Summons dated 14th November 2023 under Rules 2 and 11 of the Advocates Remuneration Order and Article 159 of the Constitution, the Applicant filed a Reference seeking stay of execution of a Ruling of the Deputy Registrar delivered on 31st October 2023 taxing the Respondents' Bill of Costs at Kshs. 744,805, setting aside that decision, and re-taxation of the Bill of Costs dated 16th May 2023. The Bill of Costs arose from costs awarded to the Respondents when the Applicant's suit, Murang'a ELC No. 47 of 2017, was dismissed on 27th February 2020. The Applicant contended that the taxing master committed an error of principle by deriving the value of the suit property from a loan facility of Kshs. 17,000,000 rather than the purchase price of Kshs. 2,400,000, and by awarding excessive court attendance fees contrary to Schedule VI of the Remuneration Order. The Respondents opposed, arguing the Reference was filed out of time without leave under Rule 11, was improperly instituted as a separate suit rather than in the original suit contrary to Sections 27(1) and 34(1) of the Civil Procedure Act, and that no error of principle was demonstrated. The court framed three issues: timeliness, competence and entitlement to the orders sought. Applying the Nick Salat extension-of-time principles and Mwangi Keng'ara v Invesco Assurance, Judge L. Gacheru held the Reference was filed outside the fourteen-day period with no explanation or application for enlargement of time, and that it was a separate suit likely to occasion mischief. The entire Reference was dismissed with costs to the Respondents on 9th May 2024.

Key legal issues

#
01

Whether the Reference was filed out of time

Holding

Yes; the Reference filed on 16th November 2023 against a Ruling of 31st October 2023 was out of time and no leave to enlarge time was sought nor explanation offered

Reasoning

Rule 11 of the Advocates Remuneration Order requires an objection within fourteen days and a reference within fourteen days of receipt of reasons. The Applicant filed the Reference after the lapse of the period, did not apply for enlargement of time and offered no explanation for the delay. Citing the Salat principles, the court held it could not exercise its discretion to extend time absent an explanation, so the Reference offended the rule.

p. 6
02

Whether the Reference was competent

Holding

No; it was filed as a separate suit with a different file number instead of in the original suit, Murang'a ELC No. 47 of 2017

Reasoning

The court found that the Reference bore a different file number from the original suit and thus constituted a separate suit. Following Mwangi Keng'ara & Company Advocates v Invesco Assurance Company Ltd, the court held that permitting such an application to proceed would occasion confusion or mischief to the Respondents. The Reference was accordingly disallowed as incompetent.

p. 7
03

Whether the Applicant was entitled to the orders sought

Holding

No; having been filed out of time and as a separate suit, the Reference was incompetent and the orders could not issue

Reasoning

On the cumulative findings that the Reference was filed outside the fourteen-day window without leave or explanation, and that it was commenced as a separate suit rather than in the original suit, the court held the Reference incompetent and unmerited. The court therefore dismissed the entire Reference with costs to the Respondents.

p. 7

Legal principles established

#
  • A reference under Rule 11 of the Advocates Remuneration Order must be filed within the prescribed fourteen days or the applicant must seek enlargement of time with an explanation for the delay
  • A reference challenging taxation should be filed in the original suit, not as a separate suit

Court orders

#
  1. 1.The entire Reference dated 14th November 2023 is dismissed
  2. 2.Costs of the Reference to the Respondents

Authorities

#

Legislation

  • Advocates Remuneration OrderRules 2, 11; Schedule 6 Paragraph 7(d); Schedule VI
  • Advocates ActSections 2 and 11 (as invoked)
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 27(1) and 34(1)

Cases cited (18)

  • Sophie Chirchir Vs Africa Merchant Assurance Co. Ltd
    [2022] eKLR
  • Makula International Vs Cardinal Nsubuga & Another
    [1982] HCB 11
  • Nyangito and Co. Advocates V Doinyo Lessos Creameries Ltd
    [2014] eKLR
  • Eunice Grace Njambi Kamau and Another Vs Kenya National Highways Authority and 3 others
    [2022] eKLR
  • John Muthee Ngunjiri and 4 Others Vs Attorney-General and 3 Others; Kenya Power and Lighting Company Ltd and Another (Interested Parties)
    [2021] eKLR
  • Robinson Onyango Malombo t/a O.M. Robinson & Co. Advocates Vs County Government of Mombasa
    [2019] eKLR
  • KCB Bank Limited & Another V Yeswa Antony Joseph
    [2022] eKLR
  • First American Bank of Kenya Vs Shah and others
    [2002] eKLR
  • Delmonte Kenya Ltd V Kenya National Chamber of Commerce and Industry (KNCCI) Murang'a Chapter and 2 other
    [2021] eKLR
  • Joreth Limited v Kigano & Associates
    [2002] eKLR
  • Chege Vs Pewaki Enterprises Limited
    (Civil Appeal no. 518 of 2018) [2023] KEHC 21362 (KLR) (Civ)
  • Mohammed Vs Abas
    ELC Misc. Appl. No. 64 of 2022 [2023] KEELC 20065 (KLR)
  • Republic Vs Minister for Agriculture & 2 Others ex-parte Samuel Muchiri W'Njuguna
    (2006) eKLR
  • Board of Trustees Kiambu Institute of Technology Vs Nicholas Kinyua & 50 others
    [2022] eKLR
  • Daniel T. Arap Moi Vs Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2)
    [2006] 1 EA 5
  • Nick Kiptoo Arap Salat Vs IEBC and 7 others
    [2014] eKLR
  • Mwangi Keng'ara & Company Advocates V Invesco Assurance Company Ltd
    [2016]
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order; Article 159 of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njoroge ((Suing as the Personal Representative of Angelo Kanyuanjohi Macharia)) v Nyingi & another (Sued as the Legal and Personal Representatives of the Estate of the Late Tirus Nyingi Ngahu – Deceased) (Environment and Land Miscellaneous Application E006 of 2023) [2024] KEELC 4041 (KLR)", Case Analysis (2024). Reference dated 14th November 2023 (arising from Murang'a ELC No. 47 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4041/eng@2024-05-09

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