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ELCDismissedNot stated in judgment (reference filed in a cause distinct from ELCLC Miscellaneous Civil Application No. E047 of 2024)· [2025] KEELC 4311 (KLR)

Kazungu v Tindika t/a Tindika & Company Advocates (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 4311 (KLR)

Environment and Land Court of Kenya
5 June 2025
4,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent filed a notice of preliminary objection dated 27/3/2025 against a reference in which the applicant sought stay of execution and setting aside of a taxing master's ruling of 13th February 2025 taxing an advocate/client bill of costs at KShs 4,830,533.60 in Malindi ELCLC Miscellaneous Civil Application No. E047 of 2024. The respondent argued that the reference offended paragraph 11(1) and (2) of the Advocates Remuneration Order because no notice of objection was issued to the taxing officer, and that the reference should have been filed in the same cause where taxation occurred. The applicant conceded the omission but blamed an oversight by erstwhile counsel, noting the reference was filed within 14 days and that the instruction fee was identifiable as the disputed item. Mwangi Njoroge J held that the notice requirement serves to alert the taxing master and obtain reasons, but where reasons appear in the taxation ruling - as here - lodging a notice is unnecessary, following Ahmed Nassir Abdikadir and Evans Thiga Gaturu. On venue, the court held that an advocate/client bill of costs is purely contractual and may be filed and referenced by way of a separate miscellaneous application, construing 'the High Court' in the Advocates Act, via Section 7 of the Sixth Schedule to the Constitution, to include courts of equal status such as the ELC, and applied paragraph 13(3) of the Remuneration Order. Finding no prejudice and no contrary authority, the court dismissed the entire preliminary objection with costs and directed mention on 19/6/2025 alongside E047 of 2024 for further directions.

Key legal issues

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01

Whether failure to give the Rule 11(1) notice of objection before filing a reference is fatal

Holding

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

Reasoning

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.

p. 6
02

Whether the reference could be lodged in a fresh proceeding other than the cause in which taxation was done

Holding

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

Reasoning

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.

p. 7
03

Whether the application was incompetent, an abuse of process, and designed to frustrate recovery of taxed costs (grounds 3, 4 and 5)

Holding

These grounds, construed independently, had no substance; the main grounds having failed, the entire objection was dismissed

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The preliminary objection by the respondent is dismissed with costs
  2. 2.The matter to be mentioned on 19/6/2025 alongside ELC MISC Application No E047 of 2024 for further directions

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1) and (2)
  • Advocates Remuneration OrderParagraph 11(4) (extension of time)
  • Advocates Remuneration OrderParagraph 13(3)
  • Advocates ActDefinition of 'the court'
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 162(5)
  • Constitution of Kenya, 2010Section 7 of the Sixth Schedule
  • Civil Procedure ActSections 1A, 1B, 3A, 34 and 79G

Cases cited (11)

  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Machira & Co. Advocates v Arthur K. Magugu & another
    [2012] KECA 245 (KLR)
  • Shah H Bharmal and Brothers v Kumari
    [1961] EA 679
  • Belinda Murai and Others v Amos Wainaina
    1978 KLR
  • Mwangi v Mwangi
    1999 2 EA 234
  • Raila Odinga & Five Others v Independent Electoral and Boundaries Commission & Three Others
    Petition No 5 of 2013 [2013] eKLR
  • Zakaria Okoth Obado v Edward Akongo Ayugi & 2 Others
    2014 eKLR
  • Evans Thiga Gaturu v Kenya Commercial Bank Ltd
    [2012] eKLR
  • Ahmed Nassir Abdikadir & Co Advocates v National Bank of Kenya Ltd
    [2006] 1 EA 5
  • B. H. Lalji v B. H. Nurani & Others
    [1998] eKLR
  • Monyo & 2 others v Ngige
    (Miscellaneous Civil Application E07 of 2020) [2023] KEHC 817 (KLR)
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

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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, "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.