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ELCPartially AllowedNotice of Motion dated 26th November, 2025 (arising from taxation in Naivasha MCC/657/2019)· [2026] KEELC 1244 (KLR)

GN Kimani & Company Advocates v Kimani (Environment and Land Miscellaneous Case E003 of 2025) [2026] KEELC 1244 (KLR)

Environment and Land Court
5 March 2026
4,400 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a client extra time to challenge an advocate's legal fees ruling delivered without notice, but refused to block collection.

What this practically means

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Executive summary

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The Client/Applicant, Shem Maina Kimani, moved the court by Notice of Motion dated 26th November 2025 seeking to vary, review or set aside an ex parte taxation ruling delivered on 30th October 2025, leave to file an objection to the Bill of Costs, and stay of execution. He contended that fees were payable only from the decretal amount under a Section 45 Advocates Act agreement, that the Advocate/Respondent had retained Kshs. 210,000 from an out-of-court settlement, that he was never served with the Bill of Costs, and that the ruling was delivered on 30th October 2025 without notice of the changed date. The Advocate/Respondent opposed, arguing the Applicant participated fully in the taxation, failed to file a Rule 11 reference, and that the stay prayer was premature since no Certificate of Costs had been issued or adopted as a judgment. The court framed four issues and held that Rule 11 of the Advocates Remuneration Order, as the specific procedure, overrides the general Civil Procedure Rules. It found the ruling was not strictly ex parte since the original ruling date was taken in the Applicant's presence, but delivery on 30th October 2025 without the 10-day notice required by Order 22 Rule 6 was a procedural irregularity breaching natural justice, Article 50(1) and Article 47, depriving the Applicant of his Rule 11(1) right to lodge a Notice of Objection within 14 days. The application was partially allowed: time was enlarged by 14 days to file the Notice of Objection; the stay prayer was denied as premature; and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the application was fatally defective for not following Rule 11 of the Advocates Remuneration Order

Holding

The specific procedure of Rule 11 overrides the general Civil Procedure Rules; the Applicant's Notice of Objection was filed out of the 14-day window and in the wrong court, so the court exercised its discretion under Rule 11(4) to enlarge time

Reasoning

The court held that Rule 11 of the Advocates Remuneration Order exclusively governs challenges to a Taxing Officer's decision, displacing Orders 42 and 51 of the Civil Procedure Rules. The Applicant's Notice of Objection dated 12th November 2025 was filed after the 14-day window lapsed and in the wrong court. However, because the ruling was delivered without notice, the Applicant was deprived of his mandatory right under Rule 11(1), justifying enlargement of time under Rule 11(4).

p. 7
02

Whether the taxation ruling was ex parte

Holding

The ruling was not ex parte as the ruling date of 18th September 2025 was given in the Applicant's presence; but delivery on 30th October 2025 was without the 10-day notice required by Order 22 Rule 6, a procedural irregularity violating natural justice and Article 50(1)

Reasoning

The court found on the record that both parties participated in the taxation and the initial ruling date was taken in their presence, so the ruling could not be termed ex parte at that stage. However, the ruling was delivered on 30th October 2025 without notice, and the Respondent produced no Affidavit of Service to prove notice. Delivery of the ruling without the statutory 10-day notice prejudiced the Applicant and deprived him of his Rule 11(1) right to file a Notice of Objection within 14 days.

p. 7
03

Whether the Applicant should be granted leave to file his Objection to the Bill of Costs

Holding

Granted by way of enlargement of time of 14 days to file the Notice of Objection

Reasoning

Because the Applicant had no notice of the delivery of the ruling on 30th October 2025, he was deprived of the opportunity to lodge a Notice of Objection within the statutory 14 days and to request the Taxing Officer's reasons, a prerequisite for a Rule 11(2) reference. The court enlarged time by 14 days from the date of the ruling so as not to pre-empt the parties' rights.

p. 8
04

Whether stay of execution should issue

Holding

Denied as premature since no Certificate of Costs had been issued or adopted as a judgment

Reasoning

The court found the stay prayer premature. The Respondent had deponed, uncontradicted on this point, that no Certificate of Costs had been issued nor had any application been made to adopt the Certificate of Costs as a judgment under Section 51(2) of the Advocates Act, so no execution could lawfully issue and the Applicant's apprehension was speculative.

p. 8

Legal principles established

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  • Where a specific procedure is provided by statute, a party cannot ignore it and resort to the general Civil Procedure Rules; challenges to a Taxing Officer's decision must follow Rule 11 of the Advocates Remuneration Order
  • A taxation ruling delivered without the 10-day notice required by Order 22 Rule 6 of the Civil Procedure Rules must be set aside as of right (ex debito justitiae), as it violates the right to be heard and Article 50(1) of the Constitution
  • A party cannot be penalized for failing to take a step in a proceeding of which they were not aware, since failure to notify a party of a ruling breaches Articles 50(1) and 47 of the Constitution

Court orders

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  1. 1.The Applicant's application dated 26th November 2025 is partially allowed
  2. 2.Time is enlarged for the Applicant to file his Notice of Objection by a period of 14 days from the date of the ruling
  3. 3.The prayer seeking stay of execution is denied as premature
  4. 4.Each party shall bear its own costs
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Orders 42 and 51 of the Civil Procedure Rules; Rule 11(4) of the Advocates Remuneration Order; Article 50(1) of the Constitution of Kenya

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, "GN Kimani & Company Advocates v Kimani (Environment and Land Miscellaneous Case E003 of 2025) [2026] KEELC 1244 (KLR)", Case Analysis (2026). Notice of Motion dated 26th November, 2025 (arising from taxation in Naivasha MCC/657/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1244/eng@2026-03-05

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