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ELCDismissedMiscellaneous Application dated 09/10/2023 (Miscellaneous Reference Application)

Siror & another v Sugut & 12 others (Environment and Land Miscellaneous Application 7 of 2023) [2025] KEELC 5 (KLR)

High Court of Kenya
15 January 2025
5,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a bid to overturn a KSh 631,310 costs ruling because the objection was filed a day late, confirming strict 14-day deadlines.

What this practically means

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Executive summary

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By an application dated 09/10/2023, the Applicants sought leave to file a miscellaneous reference against a Ruling of the Deputy Registrar delivered on 13/12/2022 taxing the Interested Parties' Bills of Costs at Kenya Shillings 631,310/=, setting aside the taxation of item 1 and other items and taxing them afresh, and a stay of execution pending the reference. They argued that their letter of objection of 28/12/2022 was filed in time because Order 50 Rule 4 of the Civil Procedure Rules excludes the period between 21st December and 13th January from computation of time, and that the instructions fees of Kenya Shillings 500,000/= taxed base exceeded the range in the Advocates Remuneration Order. The Respondents countered that no valid notice of objection was filed within the 14 days prescribed by Rule 11 of the Advocates Remuneration Order, that Order 50 Rule 4 does not apply to those timelines, and that a reference could only issue after reasons for the taxation were supplied. Nyagaka J framed five issues and held that the Advocates Remuneration Order is a complete code on taxation of costs; under Section 3 of the Civil Procedure Act the Act and its Rules, including Order 50 Rule 4, do not apply where a special procedure is prescribed elsewhere. Time for objection therefore ran from 13/12/2022 to 27/12/2022, and the Applicants' objection filed on 28/12/2022 without leave was improper and of no legal effect. Applying Salat v IEBC, the court held that a filing made without requisite leave is a nullity, that the applicants' simultaneous reference and prayer for leave were contradictory, and that since reasons for taxation had never been requested or given, the time to file a reference had not commenced. The prayer for setting aside the taxation was premature, and stay of execution fell with the reference. The application was dismissed with costs to the Respondents and the file was closed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Reference is properly before the Court
  2. 2.Whether the Applicants should be granted leave to file a Reference against the Ruling delivered on 13/12/2022
  3. 3.Whether stay of execution should be granted pending the determination of the Miscellaneous Reference Application
  4. 4.Whether the Ruling of 13/12/2022 in respect of items No. 1, 3rd, 4th to 11th and 13th should be set aside and taxed afresh
  5. 5.Who should bear the costs of the application

Key legal issues

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01

Whether Order 50 Rule 4 of the Civil Procedure Rules extends the time for filing a notice of objection under Rule 11 of the Advocates Remuneration Order

Holding

It does not. The Civil Procedure Rules are subsidiary legislation under Section 81 of the Civil Procedure Act, and Section 3 of the Act provides that its procedure does not limit any special jurisdiction or procedure prescribed under another law. The Advocates Remuneration Order is a complete code on taxation, so time under Rule 11(1) ran from 13/12/2022 to 27/12/2022 and the objection filed 28/12/2022 was out of time.

Reasoning

The court reasoned that the Civil Procedure Act prevails over the Rules in a hierarchy of laws, but that Section 3 of the Act itself disapplies the Act and Rules where a special procedure exists under another law. Authorities including Hezekiel Oira, Machira & Company Advocate v Magugu, George Miyare and Mutanga Tea establish the Advocates Act and Remuneration Order as a complete code on taxation of costs. Hence the recess omission of time in Order 50 Rule 4 is confined to acts under the Civil Procedure Rules and cannot save the Applicants' late objection.

p. 9
02

Whether the reference and the prayer for leave to file a reference could stand together

Holding

They could not. A party cannot file a reference and simultaneously seek leave to file it; where leave is a precondition, a document filed without it is a nullity, following Salat v IEBC.

Reasoning

The court found the two prayers self-contradictory and invoked the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC to hold that filing before obtaining required leave renders the document a nullity. Since the Applicants neither filed a timely objection nor sought extension of time under Rule 11(4), and no reasons for taxation had been given, the reference had no foundation and leave to file it was refused.

p. 6

Legal principles established

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  • Order 50 Rule 4 of the Civil Procedure Rules (the Christmas recess freeze on computation of time) does not apply to the timelines prescribed in Rule 11 of the Advocates Remuneration Order, because where a special statute or subsidiary legislation prescribes a procedure, the Civil Procedure Act and Rules thereunder do not apply
  • A document filed without leave of the court where leave is a condition precedent is a nullity

Court orders

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  1. 1.The entire application is dismissed with costs to the Respondents
  2. 2.The file is closed, subject to payment of the costs of the Application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 1A, 1B and 27 of the Civil Procedure Act, Order 42 Rule 6 and Order 50 Rule 4 of the Civil Procedure Rules and Rule 11(1) and (2) of the Advocates Remuneration Order

Relief refused

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Leave to file a miscellaneous reference against the Deputy Registrar's Ruling of 13/12/2022

No notice of objection was filed within the 14 days prescribed by Rule 11 of the Advocates Remuneration Order; Order 50 Rule 4 CPR does not apply; and reasons for the taxation have not been sought or given, so the time to file a reference has not commenced

p. 6

Setting aside and taxation afresh of item 1 and other items of the Deputy Registrar's Ruling

The prayer was premature and incompetent as leave to file a reference had not been granted and the reference was not properly before the court

p. 5

Stay of execution of the taxed costs pending the hearing and determination of the reference

There is no valid reference pending and the objection was improperly on record; the application was also filed with inordinate delay

p. 9

Costs

The entire application failed and was dismissed with costs to the Respondents who opposed it; the file is closed subject to payment of the costs of the Application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court.
p. 4Nullity of filings made without requisite leave (Salat v IEBC, applied)
Where there is a law prescribed by either a constitution or an Act of Parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed.
p. 7Strict adherence to prescribed special procedures (Kimani Wanyoike v ECK)
The Advocates Act, in my most considered view, is a complete statute in itself on matters of taxation of costs and as such, a party cannot invoke the provisions of the Civil Procedure Act or Rules made there under for purposes of challenging any decision of the taxing oficer
p. 7Advocates Remuneration Order as a complete code on taxation
The upshot is that the entire application fails. It is dismissed with costs to the Respondents who opposed it. The file is closed, subject to payment of the costs of the Application herein.
p. 9Final orders and disposition

Issues in the judgment

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minor

The judgment records the Respondents' issue as concerning a letter dated 28/12/2023 while the applicants' letter is elsewhere dated 28/12/2022

minor

The Bill of Costs is inconsistently dated 7th July 2020 in the prayers and 07/07/2022 in the submissions

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, "Siror & another v Sugut & 12 others (Environment and Land Miscellaneous Application 7 of 2023) [2025] KEELC 5 (KLR)", Case Analysis (2025). Miscellaneous Application dated 09/10/2023 (Miscellaneous Reference Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5/eng@2025-01-15

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