Osalloys v Barclays Bank of Kenya & 2 others (Environment & Land Miscellaneous Case E066 of 2021) [2024] KEELC 6737 (KLR)

Environment and Land Court

9 October 2024

MGM.N. Gicheru

690 words in judgment

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The bottom line

What this practically means

Executive summary

This ruling by the Environment and Land Court at Kajiado (M.N. Gicheru, J) determines an amended chamber summons dated 23/5/2024 by the 1st defendant, brought under Paragraph 11(1) and (4) of the Advocates Remuneration Order and Sections 3A and 63(e) of the Civil Procedure Act. The applicant sought enlargement of time to file the reference, setting aside of the Deputy Registrar's taxation ruling dated 13/9/2023 in which the plaintiff's bill of costs was assessed at Kshs. 547,385/-, and alternatively a refund of Kshs. 142,000/-, contending that counsel had no notice of the ruling delivery date, that the mistake of counsel should not be visited on the client, and that the taxing master wrongly applied the 2009 rather than the 2006 Remuneration Order given that instructions were given in 2011. The plaintiff opposed, asserting prior determinations of the same issue, due service of the hearing notice, prematurity of the reference under rule 11, and that execution had already taken place. The court found that the 1st defendant's counsel was duly served and failed to attend court, and that the applicant had not demonstrated compliance with the three-step rule 11 procedure (notice of objection, obtaining the taxing officer's reasons, and filing the chamber summons within 14 days). The court dismissed the summons with costs.

Key legal issues

Service of notice of the taxation ruling

Holding

The 1st defendant's counsel was duly served with the hearing notice and failed to attend court, so there was no basis for setting aside the decision

Reasoning

The court found that counsel for the 1st defendant was served with the relevant hearing notice and stamped it, yet failed to attend court. The court also noted the matter had repeatedly come up on applications to set aside the taxing master's order, indicating a lack of merit in yet another attempt.

p. 2

Compliance with rule 11 of the Advocates Remuneration Order

Holding

The applicant failed to demonstrate compliance with the procedural steps under rule 11, rendering the reference defective

Reasoning

Rule 11 requires notice of objection within 14 days, procurement of the taxing officer's reasons, and filing of a chamber summons within 14 days of receipt of those reasons. The applicant's affidavit did not show any of these steps were taken, and the plaintiff argued the reference was premature. The application therefore failed.

p. 2

Legal principles established

Rule 11 of the Advocates Remuneration Order prescribes a mandatory three-step procedure for objecting to a taxing master's decision: notice of objection within 14 days, obtaining the taxing officer's reasons, and filing a chamber summons within 14 days of receipt of those reasons
An applicant seeking to set aside a taxation decision must demonstrate compliance with the rule 11 procedure in the supporting affidavit

Court orders

1.The amended chamber summons dated 23/5/2024 is dismissed with costs
2.Costs of the application awarded to the plaintiff

Authorities

Legislation

Advocates Remuneration OrderParagraph 11(1) and (4)
Civil Procedure ActSections 3A and 63(e)

Jurisdiction invoked: Paragraph 11(1) and (4) of the Advocates Remuneration Order, Sections 3A and 63(e) of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Osalloys v Barclays Bank of Kenya & 2 others (Environment & Land Miscellaneous Case E066 of 2021) [2024] KEELC 6737 (KLR)", Case Analysis (2024). Amended Chamber Summons dated 23/5/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6737/eng@2024-10-09

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