Kazungu v Tindika t/a Tindika & Company Advocates (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 4311 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a lawyer's appeal over billed fees is valid even without a formal objection notice or being filed in the original case.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to give the Rule 11(1) notice of objection before filing a reference is fatal
Not fatal in this case; the objection ground failed because the reference was filed within time and the item objected to (instruction fee) was identifiable from the application
The court held the rule's purpose is to alert the taxing master and obtain reasons. Where reasons appear in the taxation ruling, seeking further reasons is superfluous. Here grounds (b) and (d) of the application identified the instruction fee as the disputed item, and even a single item can ground a reference. An excessively strict reading would throttle the spirit of the rule as explained in Machira.
Whether the reference could be lodged in a fresh proceeding other than the cause in which taxation was done
Yes; an advocate/client bill of costs is contractual and may be filed and referenced by way of a miscellaneous application, with no prejudice to the respondent
Distinguishing party-and-party taxation (which must be in the suit in which costs were awarded), the court reasoned that advocate/client taxation concerns only the contract for services and paragraph 13(3) of the Remuneration Order contemplates filing in a miscellaneous cause. Section 7 of the Sixth Schedule permits construing 'the High Court' in the Advocates Act to include courts of equal status. No authority to the contrary was cited and no prejudice was shown.
Whether the application was incompetent, an abuse of process, and designed to frustrate recovery of taxed costs (grounds 3, 4 and 5)
These grounds, construed independently, had no substance; the main grounds having failed, the entire objection was dismissed
The court found the substantive objections were grounds 1 and 2, which both failed on the analysis. Grounds 3, 4 and 5 were general complaints that could not stand independently of the failed main grounds.
Legal principles established
#- Where the reasons for a taxation are contained in the taxing master's ruling, there is no need to lodge the Rule 11(1) notice or await further reasons before filing a reference
- A reference may be maintained where the items objected to are identifiable from the application even if not systematically listed
- Following the 2010 Constitution, references to 'the High Court' in the Advocates Act must be construed to include courts of equal status such as the Environment and Land Court for advocate/client bill of costs and references
- An advocate/client bill of costs, being purely contractual, may be filed and referenced by way of a miscellaneous application in a separate cause
Court orders
#- 1.The preliminary objection by the respondent is dismissed with costs
- 2.The matter to be mentioned on 19/6/2025 alongside ELC MISC Application No E047 of 2024 for further directions
- Jurisdiction invoked
- Advocates Remuneration Order paragraph 11 (reference to a judge); Constitution of Kenya 2010, Section 7 of the Sixth Schedule (construction of 'the court' under the Advocates Act to include courts of equal status)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu v Tindika t/a Tindika & Company Advocates (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 4311 (KLR)", Case Analysis (2025). Not stated in judgment (reference filed in a cause distinct from ELCLC Miscellaneous Civil Application No. E047 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4311/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.