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ELCPartially Allowed· [2025] KEELC 5984 (KLR)

Oyomba Mosota & Nyamweya Advocates v Deborah Achieng Aduda & Rene Johny Derkx (Environment and Land Miscellaneous Application E176 of 2024) [2025] KEELC 5984 (KLR)

High Court of Kenya
10 September 2025
2,622 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The High Court let late clients challenge a legal fees taxation, but struck out their improperly filed application and made them pay the lawyer Kshs.75,000.

What this practically means

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Executive summary

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The clients/applicants moved the court by chamber summons dated 24th January, 2025 under Sections 1A, 1B and 3A of the Civil Procedure Act and Rules 11(2) and 11(4) of the Advocates (Remuneration) Order, seeking enlargement of time to lodge a notice of objection and reference against a taxing master's ruling of 19th December, 2024 taxing the advocate/client bill of costs at KES 1,354,229.64, an order deeming their notice of objection and chamber summons properly filed, and setting aside of the taxation ruling. They blamed the delay on the court's failure to avail the ruling until 8th January, 2025 and the Christmas vacation. The advocate/respondent opposed, showing the ruling had been uploaded on the e-filing platform on 20th December, 2024, and accused the applicants of indolence. The court found that the applicants had failed to file within the fourteen-day period set by Rule 11 and that their explanation for delay was not plausible given the e-filing portal record. Relying on the Supreme Court's decision in Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General, the court held that filing a reference out of time before seeking extension was an illegality the court could not sanitize; prayer 5 (deeming) could not issue as that would rubber-stamp an illegality, and prayer 6 (setting aside the taxation) could only be pursued in a reference. Nonetheless, the court exercised discretion in the applicants' favour: leave was granted to file the notice of objection and reference within seven days, the prematurely filed chamber summons dated 23rd January, 2025 was struck out, and costs of Kshs.75,000/- were awarded to the advocate/respondent payable within 30 days.

Key legal issues

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01

Whether the applicants established sufficient grounds for enlargement of time to file a reference against the taxing master's ruling

Holding

Although the applicants were indolent and their reasons not plausible, the court exercised its discretion under Rule 11(4) in their favour, but with costs

Reasoning

Rule 11 of the Advocates (Remuneration) Order requires objections within fourteen days and references within fourteen days of receipt of reasons. The applicants failed to file within time. The court found their explanation unconvincing because the ruling had been uploaded on the e-filing platform, but noted they were intent on challenging the taxation and so discretion was exercised in their favour on terms.

p. 5
02

Whether the chamber summons dated 23rd January, 2025, filed out of time without prior leave, was properly before the court

Holding

The chamber summons filed out of time without leave was a nullity and was struck out

Reasoning

Relying on the Supreme Court's decision in Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General, the court held that filing a document out of time and then seeking extension to recognize it invites the court to remedy an illegality. The proper course was to apply under Rule 11(4) first. The prematurely filed chamber summons was therefore struck out.

p. 5

Legal principles established

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  • A party who intends to file a reference out of time must first invoke Rule 11(4) of the Advocates (Remuneration) Order to enlarge time before filing; filing first and seeking to legalize the filing is an illegality the court will not sanction
  • Filing a document out of time and then seeking extension of time amounts to asking the court to remedy an illegality; such a document is a nullity

Court orders

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  1. 1.The clients/applicants are granted leave to file a notice of objection and reference against the ruling of the taxing master delivered on 19th December, 2024 on the Advocate/Client Bill of Costs dated 2nd September 2024
  2. 2.The notice of objection and reference to be filed and served within seven days from the date of the order
  3. 3.The chamber summons dated 23rd January, 2025 is struck out
  4. 4.The costs of the application payable by the clients/applicants to the advocate/respondent are assessed at Kshs.75,000/- to be paid within 30 days

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Advocates (Remuneration) OrderRule 11(1), (2), (3), (4)

Cases cited (10)

  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] eKLR
  • Republic v Kenyatta University and another exparte Wellington Kihanto Wamburu
    [2018] eKLR
  • George Miyare t/a Miyare & Co. Advocates v Evans Gor Semelang'o
    [2019] eKLR
  • Governors Baloon Safari Limited v Skyship Company Limited & Another
    [2020] eKLR
  • Jaber Mohsen Ali 7 Another v Priscillah Boit & another
    [2014] eKLR
  • George Kagima Kariuki & 2 others v George M. Gichimu & 2 others
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • M/S Portreitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Mirugi Kariuki & Co. Advocates v Andrew Isoe Ochoki
    [2022] eKLR
  • Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General
    [2020] KESC 52 (KLR)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11(4) 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, "Oyomba Mosota & Nyamweya Advocates v Deborah Achieng Aduda & Rene Johny Derkx (Environment and Land Miscellaneous Application E176 of 2024) [2025] KEELC 5984 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5984/eng@2025-09-10

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