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ELCDismissedChamber Summons Application dated 3rd April, 2024 (Reference from Taxation)· [2024] KEELC 7276 (KLR)

Tonui & another v Tonui & 2 others (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 7276 (KLR)

High Court of Kenya
31 October 2024
3,564 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The High Court in Kericho struck out a late challenge to a taxed legal bill, confirming Kenya's 14-day deadline for cost objections is strictly enforced.

What this practically means

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Executive summary

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The Applicants, defendants in Kericho ELC Case No. 187 of 2015 in which the Respondents obtained judgment and a party-and-party bill of costs taxed at Kshs. 1,026,345/= on 19th March 2024, filed a reference by Chamber Summons dated 3rd April 2024 seeking to set aside, quash or have re-taxed items 1, 2, 65-69 and 83 of the bill of costs, contending that the instruction fees of Kshs. 300,000/= and other awards were manifestly excessive and unsupported by receipts. The Respondents opposed, arguing the reference was filed outside the fourteen-day window in Paragraph 11 of the Advocates Remuneration Order, that the Applicants filed no response to the bill, and that the Taxing Officer properly exercised discretion. The Court framed two issues: whether the taxation decision should be set aside and re-taxed, and who should bear costs. Applying Kipkorir, Tito & Kiara and Kamunyori, the Court reiterated that a judge will not interfere with a Taxing Officer's discretion absent an error of principle. Relying on Ahmed Nassir, Vincent Kibiwott Rono, Monyo, Mirugi Kariuki and Mario Rossi, the Court held that where a ruling contains reasons, seeking further reasons under paragraph 11(2) is unnecessary, and that a reference filed out of time without leave is incompetent and must be struck out. The reference, filed seventeen days after the ruling with no enlargement of time sought under paragraph 11(4), was struck out with costs.

Key legal issues

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01

Whether the reference was competent given the timelines in Paragraph 11 of the Advocates Remuneration Order

Holding

The reference filed seventeen days after the Taxing Officer's ruling was out of time, and the Applicants neither gave reasons for the delay nor sought enlargement of time under Paragraph 11(4); the reference was therefore incompetent and struck out.

Reasoning

Paragraph 11(1) requires an objection within fourteen days of the decision. The ruling was delivered on 19th March 2024 and the reference filed on 5th April 2024, seventeen days later. The Applicants did not apply under Paragraph 11(4) to enlarge time. Statutory timelines must be strictly complied with, and a reference filed out of time without leave is a nullity that must be struck out.

p. 8
02

Whether the Applicants needed to seek reasons from the Taxing Officer before filing the reference

Holding

The Court found this question could not be determined because the Applicants failed to annex the bill of costs and the Taxing Officer's ruling, but this did not save the out-of-time reference.

Reasoning

Relying on case law, where the reasons are already contained in the considered ruling, there is no need to seek further reasons under paragraph 11(2). However, the Applicants did not exhibit the bill of costs or the taxation ruling, so the Court could not compare the ruling with the reasons or assess whether the wrong principles were applied. Even so, the fatal defect remained the out-of-time filing without leave.

p. 7

Legal principles established

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  • On a reference from taxation, the Judge will not normally interfere with the Taxing Officer's exercise of discretion unless the Taxing Officer erred in principle
  • A reference filed out of time and without leave of Court is not competent and ought to be struck out
  • Where the reasons for taxation are contained in the ruling, there is no need to seek further reasons under paragraph 11(2) of the Advocates Remuneration Order

Court orders

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  1. 1.The Applicants' reference dated 3rd April, 2024 struck out with costs for being filed out of time and without leave

Authorities

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Legislation

  • Advocates Remuneration OrderSection 11 / Paragraph 11 (including 11(1), 11(2), 11(4)), Schedule 6
  • Civil Procedure ActSection 3A; Section 27 (Cap. 21)
  • Constitution of KenyaArticle 159
  • Civil Procedure (Amendment) Rules 2020Order 21 Rule 9B

Cases cited (13)

  • Premchand Raichand Ltd versus Quarry Services of East Africa Ltd (No. 3)
    (1972) EA 162
  • Republic & another v Medical Practitioners & Dentists Board & 2 Others; MIO (Suing on Behalf of MIO (A Minor) & 3 Others (Interested Parties)
    (Miscellaneous Application 59 & 63 of 2019 (Consolidated)) [2024] KEHC 2095 (KLR)
  • Kenya Power and Lighting Ltd versus Msellem
    (Miscellaneous Civil Application E056 of 2021) [2022]
  • Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board
    [2005] eKLR
  • National Oil Corporation Limited vs Real Energy Limited & another
    [2016] eKLR
  • Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Limited (2)
    [2006] 1 EA 5
  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    [2015] Civil Appeal 206 of 2006
  • Vincent Kibiwott Rono v Abraham Kiprotich Chebet & another
    [2022] eKLR
  • Ahmed Nassir –Vs- National Bank of Kenya Ltd
    [2006] E.A
  • Monyo & 2 others v Ngige
    (Miscellaneous Civil Application E07 of 2020) [2023] KEHC 817 (KLR)
  • Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki
    [2022] eKLR
  • Mario Rossi v Salama Beach Hotel Limited
    [2018] eKLR
  • Bernard Gichobi Njira v Kanini Njira Kathendu & another
Jurisdiction invoked
Section 11 of the Advocates Remuneration Order, Section 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya

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, "Tonui & another v Tonui & 2 others (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 7276 (KLR)", Case Analysis (2024). Chamber Summons Application dated 3rd April, 2024 (Reference from Taxation). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7276/eng@2024-10-31

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