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ELCDismissedChamber Summons dated 26th March, 2024· [2024] KEELC 6653 (KLR)

Karingo v Attorney-General & another; Ngunu & 3 others (Interested Parties) (Environment & Land Case 1404 of 2004) [2024] KEELC 6653 (KLR)

Environment and Land Court
23 July 2024
3,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a challenge to a Kshs. 6.9 million taxation because the applicant skipped the mandatory Notice of Objection step.

What this practically means

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Executive summary

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The Plaintiff, Jephthah Njagi Karingo, moved the court by Chamber Summons dated 26th March 2024 seeking to set aside the Taxing Officer's decision of 14th December 2023 insofar as it taxed items 1 and 2 of a Party and Party Bill of Costs dated 24th November 2020 (claiming Kshs. 6,887,997/=) and to refer those items for re-taxation before another Taxing Officer. He complained that his erstwhile advocates, Gitobu Imanyara Advocates, abandoned him after judgment in the main suit and allowed the taxation to proceed unopposed. The Interested Parties opposed, arguing the application ignored the statutory mode of challenging taxation and that the Applicant slept on his rights for a decade. The court framed three issues: abatement of the 3rd Interested Party's costs claim, due representation during taxation, and whether the Certificate of Taxation should be set aside. It held that new prayers raised only in submissions could not be granted since submissions are not pleadings or evidence and parties are bound by their pleadings; that substitution at execution stage is not mandatory; that the Applicant remained properly represented by his advocates on record, who were duly served, since he never complied with Order 9 Rule 9 to change representation; and critically, that the Applicant never filed the Notice of Objection required under Paragraph 11(1) of the Advocates (Remuneration) Order, a necessary step that sets in motion the court's jurisdiction. The Reference was therefore incompetent, incurably defective and a non-starter, and was dismissed with costs to the Interested Parties.

Key legal issues

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01

Whether new prayers raised only in submissions (abatement, nullity of certificate, prohibition) could be granted

Holding

No - parties are bound by their pleadings and the court can only determine issues contained in the application

Reasoning

The Applicant introduced orders in submissions that were never sought in the Chamber Summons, including abatement and nullity of the certificate. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Nancy Wambui Gatheru, the court held submissions are not pleadings or evidence. Further, under Order 24 rule 10, substitution of a deceased party at execution stage is not mandatory (Mueni Kiamba).

p. 4
02

Whether the Applicant was condemned unheard in the taxation proceedings

Holding

No - his advocates of record were duly served; he never effected a change of representation under Order 9 Rule 9

Reasoning

Gitobu Imanyara Advocates remained on record; the Applicant never sought leave to change advocates or filed a notice of intention to act in person after judgment. Service on the firm was therefore proper. A litigant has a duty to follow up on his case; any negligence by counsel is a separate cause of action against the advocate.

p. 5
03

Whether the Certificate of Taxation should be set aside

Holding

No - the Reference was incompetent for want of a Notice of Objection under Paragraph 11(1) of the Advocates (Remuneration) Order

Reasoning

Rule 11 requires a notice in writing of the items objected to before a reference is brought. This requirement, though not in mandatory terms, is necessary and sets in motion the court's jurisdiction; Article 159(2)(d) does not excuse such non-compliance. No notice or explanation was on record, so the Reference was a non-starter and its merits were not considered.

p. 6

Legal principles established

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  • The Notice of Objection under Rule 11(1) of the Advocates (Remuneration) Order is a mandatory/necessary step that sets in motion the court's jurisdiction to hear a reference against a taxation decision
  • Submissions do not constitute pleadings or evidence and cannot found relief not sought in the application
  • A party who has not complied with Order 9 Rule 9 cannot fault service on counsel of record; failure by an advocate to respond is a matter for a separate forum

Court orders

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  1. 1.The Chamber Summons dated March 26, 2024 is dismissed in its entirety
  2. 2.Costs of the application awarded to the Interested Parties/Respondents

Authorities

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Legislation

  • Civil Procedure Act
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 24 rule 10
  • Advocates (Remuneration) OrderParagraph 11(1), 11(2), 11(4)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Daniel Toroitich Arap Moi -vs- Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi
    Nairobi HCCC No. 36 of 1993
  • Mueni Kiamba -vs- Mbithi Kimeu Kimolo
    [2017] eKLR
  • Duale Mary Ann Gurre –vs– Amina Mohamed Mahamood & Another
    [2014] eKLR
  • OJSC Power Machines Limited, Trancentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board; Kenya Electricity Generating Company Limited & Another (Interested Parties)
    [2019] eKLR
  • Matiri Mburu & Chepkemboi Advocates -vs- Occidental Insurance Company Limited
    [2017] eKLR
  • Nyakundi & Company Advocates –vs- Kenyatta National Hospital Board
    (2005) eKLR
  • Twiga Motor Limited –vs- Hon. Dalmas Otieno Anyango
    [2015] eKLR
Jurisdiction invoked
Paragraph 11(2) of the Advocates (Remuneration) Order - reference to a Judge from 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, "Karingo v Attorney-General & another; Ngunu & 3 others (Interested Parties) (Environment & Land Case 1404 of 2004) [2024] KEELC 6653 (KLR)", Case Analysis (2024). Chamber Summons dated 26th March, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6653/eng@2024-07-23

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