Raphael Wambua Kigamwa t/a Wambua Kigamwa & Co. Advocates v Kunah (Environment and Land Miscellaneous Application E007 of 2023) [2024] KEELC 5050 (KLR)
The bottom line
#A Kericho court cancelled a Kshs. 669,225 fee award because the original bill of costs was missing from the file, meaning no one could check how the figure was reached.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer's decision of 24th October 2023 should be set aside and the bill taxed afresh
The decision was set aside and the bill remitted for fresh taxation, because the bill of costs itself was missing from the court record and the court could not verify how the taxed figure was arrived at.
The court applied the principle that interference requires an error of principle. Although the applicant filed no Notice of Objection and did not demand reasons under Paragraph 11 of the Advocates Remuneration Order, the court found the record itself defective: the Advocate-Client bill of costs referred to was not on the file, and only a Certificate of Costs for Kshs. 669,225/= existed. Without the bill the judge could not determine whether the taxing officer's discretion was properly exercised.
Procedural compliance with Paragraph 11 of the Advocates Remuneration Order (notice of objection and demand for reasons)
The applicant did not file a Notice of Objection; however, since the taxing officer's decision contained no reasons, the court exercised its discretion to entertain the reference notwithstanding the omission.
The court noted that a party dissatisfied with a taxing officer's decision should give a Notice of Objection itemizing the objected items, especially where reasons were not given. The taxing officer here merely allowed the application as prayed without reasons, so reasons should have been sought. Nonetheless, the absence of the bill of costs from the record was a fundamental defect justifying interference regardless of that procedural lapse.
Legal principles established
#- A judge on reference will not normally interfere with a taxing officer's decision unless the taxing officer erred in principle.
- Where a taxing officer's decision contains no reasons, the objector should first seek reasons before lodging a reference.
- A bill of costs must be filed in a miscellaneous cause for taxation; the court cannot assess a reference where the bill of costs is missing from the record.
Court orders
#- 1.The Taxing Officer's decision and ruling dated 24th October, 2023 is set aside
- 2.The bill of costs dated 26th September, 2023 is remitted to the Taxing Officer for fresh taxation
- 3.The Respondent/Applicant shall have costs of the application
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order and Order 40 Rule 1(a) & (b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Wambua Kigamwa t/a Wambua Kigamwa & Co. Advocates v Kunah (Environment and Land Miscellaneous Application E007 of 2023) [2024] KEELC 5050 (KLR)", Case Analysis (2024). Chamber Summons application dated 7th November, 2023 (arising from Advocate-Client bill of costs dated 26th September, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5050/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.