Shah & 2 others v Koki Mbulu & Co.Advocates (Miscellaneous Application 1404 of 2023) [2024] KEELC 4282 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the objection that the reference failed to comply with Rule 11(1) constitutes a proper preliminary objection
Yes - it is a pure point of law arising from settled documents.
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.
Whether the applicants complied with Rule 11(1) of the Advocates Remuneration Order
No - their letter of 13th December 2023 requesting reasons did not identify the items objected to.
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.
Whether the reference was meritorious on the merits of the taxation
The court declined to consider the merits as there was no competent reference before it.
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.
Legal principles established
#- 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
#- 1.The Reference vide Chamber Summons Application dated 22nd December 2023 be and is hereby struck out.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.