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ELCStruck OutChamber Summons Application dated 22nd December 2023· [2024] KEELC 4282 (KLR)

Shah & 2 others v Koki Mbulu & Co.Advocates (Miscellaneous Application 1404 of 2023) [2024] KEELC 4282 (KLR)

High Court of Kenya
23 May 2024
4,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants, dissatisfied with a taxing officer's decision of 11th December 2023 taxing the Respondent advocate's advocate-client bill of costs dated 4th February 2016 at Kshs. 10,117,980.00, filed a reference by chamber summons dated 22nd December 2023 seeking review and setting aside of that decision, and remission of the bill to a different taxing officer for fresh taxation. They argued the taxing officer had erred in principle by assuming the Respondent was retained to act in the sale and purchase of L.R No. 10879/4 when the instruction was only for an opinion, and had made exaggerated awards. The Respondent filed a notice of preliminary objection contending the reference was incompetent for non-compliance with Rule 11(1) of the Advocates Remuneration Order, because the Applicants' letter of 13th December 2023 merely requested reasons without identifying the items objected to. The court framed three issues and held, first, that the objection raised a pure point of law under the Mukisa Biscuits threshold as restated by the Supreme Court. Second, applying Machira & Co. Advocates v Arthur K. Magugu, it found the letter fatally defective since Rule 11(1) requires a notice specifying the items of taxation objected to; an omnibus request for reasons does not suffice, and the failure vitiated the entire reference as a nullity. Third, the court declined to examine the alleged taxation errors, holding it could only do so on a competent reference. The reference was struck out with costs to the Respondent, to be taxed by the Deputy Registrar.

Key legal issues

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01

Whether the objection that the reference failed to comply with Rule 11(1) constitutes a proper preliminary objection

Holding

Yes - it is a pure point of law arising from settled documents.

Reasoning

The court applied the Mukisa Biscuits threshold as restated by the Supreme Court, holding that a preliminary objection must be founded on a settled point of law applied to undisputed facts. Whether the applicants' letter of 13th December 2023 satisfied Rule 11(1) is determinable from the documents themselves, without ascertaining disputed facts or exercising discretion, so the objection was properly before the court.

p. 6
02

Whether the applicants complied with Rule 11(1) of the Advocates Remuneration Order

Holding

No - their letter of 13th December 2023 requesting reasons did not identify the items objected to.

Reasoning

Following Machira & Co. Advocates v Arthur K. Magugu, the court held that Rule 11(1) requires a notice in writing specifying the items of taxation objected to, so the taxing officer can give reasons on those items. The applicants' omnibus letter seeking reasons failed to identify any items, was fatally defective, and rendered the ensuing reference incompetent.

p. 7
03

Whether the reference was meritorious on the merits of the taxation

Holding

The court declined to consider the merits as there was no competent reference before it.

Reasoning

The court held that it can only examine alleged errors in a certificate of taxation where a competent reference exists. Having found the reference invalid and a nullity, there was nothing upon which to interrogate whether the taxing officer erred in taxing the respondent's advocate-client bill of costs, and the applicants' merits invitation was misconceived.

p. 8

Legal principles established

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  • A preliminary objection must rest on a settled and crisp point of law, argued on the assumption that the facts pleaded by the other side are correct.
  • A notice of objection under Rule 11(1) of the Advocates Remuneration Order must identify the specific items of taxation objected to; an omnibus letter seeking reasons does not suffice.
  • Non-compliance with Rule 11(1) renders a reference from a taxing officer's decision incompetent and a nullity.

Court orders

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  1. 1.The Reference vide Chamber Summons Application dated 22nd December 2023 be and is hereby struck out.
  2. 2.Costs of the Reference be and are hereby awarded to the Respondent and the same shall be taxed by the Deputy Registrar.
Jurisdiction invoked
Rule 11(2) and 11(4) of the Advocates Remuneration Order - reference to a Judge against the decision of a taxing officer

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, "Shah & 2 others v Koki Mbulu & Co.Advocates (Miscellaneous Application 1404 of 2023) [2024] KEELC 4282 (KLR)", Case Analysis (2024). Chamber Summons Application dated 22nd December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4282/eng@2024-05-23

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