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ELCAllowedNot stated in the judgment· [2024] KEELC 4049 (KLR)

Maina t/a Mathai Maina & Co Advocates v Wesonga (Miscellaneous Reference Application 31 of 2023) [2024] KEELC 4049 (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
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The bottom line

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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

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Executive summary

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The Applicant, instructed by the Respondent advocate in E & L Petition No. 13 of 2015 (Moses Kiptoo Rono v The Chief Land Registrar & 5 others), moved the court by chamber summons dated 28th July 2023 under Rule 11(2) of the Advocates Remuneration Order seeking leave to file an objection and taxation reference out of time against a taxing ruling of 12th May 2023 which taxed the Advocate/Client Bill of Costs, a stay of execution of the certificate of costs, and that the notice of objection be deemed filed. The Respondent opposed, contending the application was incompetent for failure to seek and attach the taxing master's reasons, and that the taxing officer properly exercised discretion. Framing two issues - extension of time and stay of execution - the court applied the First American Bank v Gulab P. Shah conditions. It found the 77-day delay explained and not inordinate because the ruling was delivered without the Applicant's knowledge, that the Respondent would suffer no prejudice as decree holder, and that the reference was arguable. Relying on Ahmed Nassir v National Bank of Kenya, it held that where reasons are already contained in the considered ruling, failure to seek further reasons under Rule 11(2) does not render the reference incompetent. On stay, applying RWW v EKW, it found a substantial question for the reference and substantial loss if execution proceeded. The application was allowed: leave to file the reference out of time was granted and prayers 3, 4 and 5 granted. Judgment delivered virtually at Eldoret on 29th April 2024 by J.M. Onyango, Judge.

Key legal issues

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01

Whether extension of time should be granted to file the taxation reference

Holding

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.

Reasoning

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.

p. 5
02

Whether the application was incompetent for failure to attach the taxing master's reasons or show that reasons were requested

Holding

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.

Reasoning

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.

p. 5
03

Whether execution of the certificate of costs should be stayed

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Leave granted to the Applicant 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 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)

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] EA
  • RWW vs. EKW
    (2019) eKLR
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

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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, "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.