Mbugua (Suing as an Administrator of the Estate of Joseph Kiarie Mbugua, Deceased) v Mburu (Environment & Land Case 1346 of 2016) [2025] KEELC 4407 (KLR)

The court held that in matters of advocate-client and party-party bills of costs, the Advocates Remuneration Order is a complete code providing a simple and expeditious reference procedure to a judge in chambers. Citing the Civil Procedure Act and Rules does not circumvent that procedure but adds no value. The court found the misdirection in provisions was not fatal and proceeded to consider the application on merit.

The court adopted the test in Mwangi S. Kimenyi that inordinate delay depends on the circumstances of each case. The Bill of Costs was taxed on 16/01/2024 and the application was filed on 6th May 2024, about four months later. The court held that this, by all standards, constituted inordinate delay, though inordinate delay alone is not determinative if adequately explained.

The Applicant's Advocate deponed that they logged into the virtual court but were never admitted, and only learned of the Ruling on 8/4/2024 when the Respondent's Advocate called. Although the Respondent alleged the Applicant's Advocate was aware of the Ruling date, there was no affidavit of service on record confirming service of the date. In those circumstances the court found the explanation reasonable and sufficient to justify enlargement of time.

The court perused the intended Reference and the Taxing Master's Ruling. The Applicant complained that the Taxing Master failed to apply the scale under Schedule 6 of the Advocates Remuneration Order 2014 and awarded a global sum without justification. The court found the Taxing Master did not state reasons for the award, rendering the reference arguable and not an idle or frivolous suit, without determining its ultimate success.

Applying the principles in County Government of Tana River v Miller & Company Advocates and Governors Baloon Safari Limited v Skyship Company Limited, the court reasoned that having found sufficient explanation for the delay and an arguable reference, the Applicant should be heard before execution proceeds. Since judgment on taxation had not been entered following certification, execution before determination of the Reference would shut the Applicant out of a fair trial and exhaustion of legal remedies.