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ELCStruck OutReference arising from Kericho ELC Misc Application No. E009 of 2023; Notice of Motion dated 19th March, 2024· [2025] KEELC 5006 (KLR)

Cheruiyot v W.K Ngenoh t/a W.K Ngenoh Lessan & Co. Advocates (Environment and Land Miscellaneous Application E006 of 2024) [2025] KEELC 5006 (KLR)

Environment and Land Court of Kenya
3 July 2025
2,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court struck out a challenge to taxed legal fees because the client skipped the required objection step and never obtained the taxing officer's reasons.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho determines a reference by Hezron Kimeli Cheruiyot, brought under Paragraphs 11(2), (4) and 13(2) of the Advocates Remuneration Order, seeking to set aside the decision of the Taxing Officer (Nyakundi) of 5th March 2024, which taxed an advocate-client bill of costs dated 6th October 2023 at Kshs. 312,649/-, including instruction fees of Kshs. 150,000/-. The Applicant argued the Taxing Officer ignored paragraph 13(3), that instruction fees were unwarranted since the underlying matter was a miscellaneous application whose value could not be ascertained (relying on Joreth Limited v Kigano & Associates), and that the Respondent advocate never filed a defence in Kericho ELC Case No. 78 of 2017 and so earned no fees. The Respondent opposed, alleging inordinate delay and that the application was an attempt to escape paying for professional work. Interim stay of execution had been granted on 20th March 2024. The Court, per L. A. Omollo, J, framed two issues and found that the Taxing Officer's ruling contained no reasons and that no Notice of Objection appeared on the court file despite the Applicant's claim of filing one. Applying Evans Thiga Gaturu v Kenya Commercial Bank and Otieno v Co-operative Bank, the Court held that paragraph 11 proceedings are progressive: reasons must be sought from the taxing officer before a reference. The Court declined to tax the bill afresh as unprocedural, found no inordinate delay (the application was filed within fourteen days), but struck out the application with no order as to costs on 3rd July 2025.

Key legal issues

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01

Whether the Taxing Officer's decision should be set aside and the bill taxed afresh

Holding

Application struck out because the Taxing Officer gave no reasons and no Notice of Objection was filed; the Court cannot tax the bill afresh

Reasoning

Paragraph 11 of the Advocates Remuneration Order prescribes a progressive process: objection to the taxing officer, furnishing of reasons, then a reference to a judge. The decision of 5th March 2024 contained no reasons, and although the Applicant claimed to have filed a Notice of Objection, no such document existed on the court file. Without reasons and without a notice of objection, the reference cannot be determined. The Court may only refer the bill for re-taxation, not tax it afresh.

p. 6
02

Whether the application was filed after inordinate delay

Holding

No inordinate delay; the application was filed fourteen days after the taxation ruling

Reasoning

The Respondent argued the application was an afterthought filed after the Certificate of Costs and decree issued. The Court found the application was filed on 19th March 2024, fourteen days after the taxing officer's decision of 5th March 2024, and therefore within time. Delay was thus not a ground for striking out the reference; the fatal defects were the absence of reasons and of a notice of objection.

p. 6

Legal principles established

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  • The court on a reference does not tax bills afresh; where a taxing officer's decision lacks reasons, the proper course is to seek those reasons before mounting a reference
  • Litigation under paragraph 11 of the Advocates Remuneration Order is progressive: a notice of objection under paragraph 11(1) is the foundation for a reference to the judge, and without it there can be no reference

Court orders

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  1. 1.The application dated 19th March, 2024 is struck out with no order as to costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), (2), (3), (4) and 13(2), 13(3)
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (7)

  • Joreth Limited versus Kigano & Associates
    [2002] eKLR
  • Evans Thiga Gaturu Vs Kenya Commercial Bank Ltd
    [2012] eKLR
  • Otieno v Co-operative Bank of Kenya Limited (Miscellaneous Civil Case E119 of 2024)
    [2025] KEHC 4963 (KLR)
  • Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited
    [2017] eKLR
  • David Anunda v John Karu (sued on his own capacity and as Chairman of Kileleshwa Githunguri Road Residents Association) & 2 others
    [2021] KEELC 1785 (KLR)
  • Ms Advocates LLP (Formerly Triple A Law Llp/Triple A Advocates) v China Wu Yi (Kenya) Company Limited
    [2023] KEELC 18074 (KLR)
  • Muriu Mungai & Co. Advocates vs. New Kenya Co-Operative Creameries Ltd
    Nairobi (Milimani) HCMC No. 692 of 2007
Jurisdiction invoked
Paragraphs 11(2), (4) and 13(2) of the Advocates Remuneration Order

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, "Cheruiyot v W.K Ngenoh t/a W.K Ngenoh Lessan & Co. Advocates (Environment and Land Miscellaneous Application E006 of 2024) [2025] KEELC 5006 (KLR)", Case Analysis (2025). Reference arising from Kericho ELC Misc Application No. E009 of 2023; Notice of Motion dated 19th March, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5006/eng@2025-07-03

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