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ELCPartially AllowedNot stated in the judgment text provided· [2025] KEELC 5686 (KLR)

JM Njenga & Co Advocates LLP v Kimuri Housing Company Limited (Environment and Land Miscellaneous Application E032 of 2023) [2025] KEELC 5686 (KLR)

Environment and Land Court
29 July 2025
1,487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court lifted an auctioneer's attachment of property and gave a client 30 days to challenge a Kshs. 15.8 million taxed legal bill she never got to dispute.

What this practically means

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Executive summary

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This was an application dated 20th January 2025 by Margaret Wambui Ngugi, the Respondent/Client/Judgment Debtor, under Sections 1A, 1B, 3, 3A and 34 of the Civil Procedure Act, various Civil Procedure Rules provisions and paragraph 11 of the Advocates Remuneration Order. The Client's bill situation arose after the Decree Holder's Bill of Costs was taxed on 18th September 2024 at Kshs. 15,834,785 in the Client's advocates' absence. An application to enforce the certificate of taxation dated 15th October 2024 was allowed on 5th December 2024 without the Client's meaningful participation, allegedly after service of the wrong application from a different file (ELC MISC. E122 of 2023). Execution followed: a warrant of attachment dated 19th December 2024 and a proclamation attaching the Client's property. The court framed the issue as whether the failure to attend taxation and to file a reference within the 14-day period under Rule 11 of the Advocates Remuneration Order was excusable. Applying Belinda Muras v Amos Wainaina, Phillip Chemwolo v Augustine Kubede, Shah v Mbogo and Martha Wangari Karua v IEBC, the court found the delay excusable, held there was no indolence or attempt to delay justice, and noted the substantial sum involved. The court lifted the attachment, set aside the warrant of attachment and the order of 5th December 2024, and granted leave to file a reference against the Taxing Master's decision within 30 days. Costs were ordered to be in the cause. Delivered at Machakos on 29th July 2025 by N.A. Matheka, Judge.

Key legal issues

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01

Whether failure to attend taxation and to file a reference within the 14-day period under Rule 11 of the Advocates Remuneration Order was excusable

Holding

The delay was excusable; the applicant's advocates were not aware of the taxation, no indolence was shown, and the application was not brought to delay justice

Reasoning

The court noted the applicant's advocates were not in court at the taxation, that counsel handling the matter was on leave, and that the wrong application was served by the decree holder. Balancing the respondent's judgment against the applicant's right to be heard on the merits, and given the substantial sum of Kshs. 15,834,785, the court found no indolence or deliberate obstruction and extended time for filing a reference.

p. 3
02

Whether the attachment of the applicant's assets and the warrant of attachment should be set aside

Holding

The attachment was lifted and the warrant of attachment dated 19th December 2024 set aside

Reasoning

Because the court set aside the order of 5th December 2024 that founded the execution, the warrant and proclamation which had attached the client's property, including alleged tools of trade, could not stand. Setting aside the underlying order removed the basis for execution pending the intended reference.

p. 1

Legal principles established

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  • The court's discretion to set aside an ex-parte order or judgment is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
  • A litigant should not be driven from the seat of justice without a hearing merely because of a mistake by counsel

Court orders

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  1. 1.That the attachment of the Respondent's/Judgment Debtor's assets be lifted and the Warrant of Attachment dated 19th December, 2024 be set aside
  2. 2.That the Order and or Judgment entered on the 5th December, 2024 be set aside and leave be granted to the Respondent/Client to file a Reference and or Appeal against the decision of the Taxing Master dated 18th September, 2024 within the next 30 days
  3. 3.That costs of this Application be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 34
  • Civil Procedure RulesOrder 10 Rule 11; Order 22 Rule 22; Order 42 Rule 6; Order 45 Rule 11
  • Advocates Remuneration OrderParagraph 11 (Rule 11)

Cases cited (4)

  • Belinda Muras & 6 Others v Amos Wainaina
    [1978] KLR
  • Phillip Chemwolo & Another v Augustine Kubede
    [1982-88] KLR 103
  • Shah v Mbogo & Another
    (1967) EA 116 (as printed: 6.A U7)
  • Martha Wangari Karua v IEBC
    Nyeri Civil Appeal No.1 of 2017
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 34 of the Civil Procedure Act; Order 10 Rule 11, Order 22 Rule 22, Order 42 Rule 6 and Order 45 Rule 11 of the Civil Procedure Rules; paragraph 11 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, "JM Njenga & Co Advocates LLP v Kimuri Housing Company Limited (Environment and Land Miscellaneous Application E032 of 2023) [2025] KEELC 5686 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5686/eng@2025-07-29

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