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)
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
#Key legal issues
#Whether the Reference was filed out of time
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
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.
Whether the Reference was competent
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
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.
Whether the Applicant was entitled to the orders sought
No; having been filed out of time and as a separate suit, the Reference was incompetent and the orders could not issue
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.
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.The entire Reference dated 14th November 2023 is dismissed
- 2.Costs of the Reference to the Respondents
- 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.