Maina t/a Mathai Maina & Co Advocates v Wesonga (Miscellaneous Reference Application 31 of 2023) [2024] KEELC 4049 (KLR)
The bottom line
#Kenya's High Court let an advocate file a late challenge to a taxed legal fee bill, ruling that missing formalities and a 77-day delay weren't fatal where the party was unaware of the ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time should be granted to file the taxation reference
Yes - the 77-day delay was explained because the taxing ruling was delivered in the Applicant's absence, the delay was not inordinate, the reference is arguable, and the Respondent, as decree holder, would suffer no prejudice.
The ruling of 12th May 2023 was delivered in the absence of the Applicant, and the Applicant only learnt of it after time had lapsed. Applying the First American Bank v Gulab Shah conditions, the court found sufficient cause, that the contemplated reference was arguable, and that the Respondent could still execute if the reference failed, so no compensable prejudice arose.
Whether the application was incompetent for failure to attach the taxing master's reasons or show that reasons were requested
No - the reasons were already contained in the considered ruling and in the Notice of Objection, so per Ahmed Nassir v National Bank of Kenya the application could not fail on that ground alone.
The court perused the ruling and found the taxing master had given reasons for arriving at Kshs.526,500/-. Following Ahmed Nassir, Rule 11(2) was not intended to be ritualistically observed where reasons are already in the ruling; the Notice of Objection also set out the grounds, so the reference would not be heard in a vacuum.
Whether execution of the certificate of costs should be stayed
Yes - the Applicant's right to file a reference must be balanced against the decree holder's rights; the reference raises a substantial question and the Applicant would suffer substantial loss if execution proceeded.
Guided by RWW v EKW on the purpose of stay - preserving the subject matter so a successful reference is not rendered nugatory - the court found a substantial question existed for the reference and that the Respondent would proceed to execution if stay were refused, causing substantial loss to the Applicant.
Legal principles established
#- Where the reasons for a taxation on the disputed items are already contained in the considered ruling, there is no need for an objector to seek further reasons before filing a reference under Rule 11 of the Advocates Remuneration Order.
- An application to enlarge time under Rule 11(4) is assessed against the delay's explanation, the arguability of the contemplated action, and whether the respondent can be compensated in costs.
Court orders
#- 1.Leave granted to the Applicant to file their taxation reference out of time against the ruling delivered on 12th May 2023
- 2.Prayers 3, 4 and 5 of the application granted (stay of execution of the ruling for payment of Kshs.526,500/= pending determination of the reference; the objection to the taxing officer deemed duly filed and served; costs to be included in the taxation)
- Jurisdiction invoked
- Rule 11(4) of the Advocates Remuneration Order - power of the High Court to enlarge time fixed by subparagraphs (1) and (2) for taking any step
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina t/a Mathai Maina & Co Advocates v Wesonga (Miscellaneous Reference Application 31 of 2023) [2024] KEELC 4049 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4049/eng@2024-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.