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ELCStruck OutChamber Summons Application dated 6th November 2023 (case number not stated in judgment)· [2024] KEELC 4378 (KLR)

Kinuthia & 2 others v Anyanga & 4 others (Environment & Land Case 160 of 2011) [2024] KEELC 4378 (KLR)

Environment and Land Court
27 May 2024
OMOguttu Mboya
4,361 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a challenge to a Kshs 5.5 million costs award because the challenger skipped a mandatory objection step before filing.

What this practically means

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Executive summary

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The 1st Plaintiff/Applicant filed a Reference by Chamber Summons dated 6 November 2023 seeking reversal of the Deputy Registrar's decision of 9 November 2023 awarding the 1st and 2nd Defendants party and party costs of Kshs. 5,579,764, alternatively that the court assess proper costs or remit the bill for taxation afresh. The 1st and 2nd Defendants opposed, contending the Reference was premature and incompetent for non-compliance with Rule 11(1) of the Advocates (Remuneration) Order, no Notice of Objection to Taxation having been filed. The 2nd and 3rd Plaintiffs supported the Reference, alleging errors of principle including taxation of costs on a counterclaim in respect of which no costs were awarded. The court framed two issues: whether the taxing officer/court was responsible for the failure to lodge a Notice of Objection, and whether the Reference was competent. On the first, the court found the excuses unverifiable, noting the Ruling was attached to a Reference that predated it, and that the proper course was an application under Rule 11(4) for extension of time. On the second, applying Machira v Magugu, Murgor v Kenya Airports Authority and Patricia Cherotich Sawe, the court held the Notice of Objection is a mandatory jurisdictional prerequisite and that Article 159(2)(d) cannot cure a jurisdictional procedural shortfall. The Reference was struck out with costs of Kshs. 25,000 awarded to the 1st and 2nd Defendants.

Key legal issues

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01

Whether the taxing officer/court was responsible for the Applicant's failure to file a Notice of Objection to Taxation

Holding

No; the failure was the Applicant's own and cannot be attributed to the taxing officer

Reasoning

The Reference was unsupported by an affidavit, so the claim of delayed supply of the Ruling was unverifiable. The Ruling dated 9 November 2023 was attached to a Reference dated 6 November 2023, predating the Ruling, showing it was timeously supplied. Even if delayed, the proper course was an application under Rule 11(4) for extension of time. The buck stops with the Applicant and counsel.

p. 7
02

Whether the Reference was competent absent a Notice of Objection to Taxation

Holding

Incompetent; the Reference was void and a nullity ab initio

Reasoning

Rule 11(1) mandates filing of a Notice of Objection identifying the items objected to within 14 days. The Notice forms the foundation of a Reference; without it no Reference can be mounted. Relying on Machira & Co. Advocates v Arthur K. Magugu and Patricia Cherotich Sawe, the court held Article 159(2)(d) cannot remedy a jurisdictional procedural shortfall, and struck out the Reference.

p. 9

Legal principles established

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  • A Notice of Objection to Taxation under Rule 11(1) of the Advocates (Remuneration) Order is a mandatory jurisdictional prerequisite to a valid Reference; without it the Reference is a nullity ab initio
  • Article 159(2)(d) of the Constitution cannot cure non-compliance with a jurisdictional procedural step
  • A litigant who misses a rule-based deadline must seek extension of time rather than invoke Article 159(2)(c)

Court orders

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  1. 1.The Reference dated the 6th of November 2023 struck out
  2. 2.Costs of the Reference awarded to the 1st and 2nd Defendants
  3. 3.Costs at the foot of the Reference assessed and certified in the sum of Kshs. 25,000/= only
Jurisdiction invoked
Reference against a taxing officer's decision under Rule 11 of the Advocates (Remuneration) Order, 2014

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, "Kinuthia & 2 others v Anyanga & 4 others (Environment & Land Case 160 of 2011) [2024] KEELC 4378 (KLR)", Case Analysis (2024). Chamber Summons Application dated 6th November 2023 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4378/eng@2024-05-27

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