Kones (Suing as the Administrator of the Estate of Kipkalya Kiprono Kones) v Kones & another (Environment and Land Miscellaneous Application E011 of 2022) [2026] KEELC 1573 (KLR)
The bottom line
#A Kericho court ruled that taxed party-and-party costs can be executed directly, and refused to excuse a 300-day delay in challenging the taxation.
What this practically means
#Executive summary
#Key legal issues
#Whether a certificate of taxed party and party costs must be adopted as a judgment or converted into a decree before execution
No. Party and party costs need not be converted into a decree before execution; the warrants of attachment and proclamation were lawfully issued.
Relying on Macharia v Mutungi, which in turn adopted Nyamira County Government v Local Authorities Provident Fund, the court distinguished advocate-client costs (governed by Section 51 of the Advocates Act) from party and party costs. Since the bill taxed on 12th June 2024 was a party and party bill, the execution process premised on the certificate of costs was procedurally proper.
Whether the Applicant should be granted leave to file a reference out of time against the taxing decision of 12th June, 2024
Leave declined. The 300-day delay was not satisfactorily explained and the application was triggered only by execution.
Under paragraph 11(4) of the Advocates Remuneration Order the discretion is unfettered but must be exercised judicially, considering length of delay, reasons, chances of success and prejudice. The Applicant knew of the 12th June 2024 ruling, his letter of 11th November 2024 did not mention the alleged negotiated sum of Kshs. 2,200,000/=, and it was the execution process that prompted the application.
Whether the ruling of 12th June, 2024 and the certificate of costs should be set aside
Cannot be determined absent a reference; complaints about taxation are ventilated only by reference.
Citing Invesco Assurance Co. Limited v Chigiti & Chigiti Advocates, which quoted Machira and Company Advocates v Magugu, the court held that any grievance with a taxing officer's decision must be raised by a reference to a judge under paragraph 11 of the Advocates Remuneration Order. Since no reference had been filed and leave to file one out of time was refused, the setting-aside prayer could not succeed.
Whether the firm of H&K Law should come on record for the Applicant
Leave granted; the prayer was unopposed.
Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. The Applicant was previously represented by Mutai J.K & Company Advocates, and the 1st Respondent did not oppose the change, so there was no reason to deny leave.
Legal principles established
#- There is no requirement for entry of judgment or conversion into a decree in respect of party and party costs before execution; Section 51 of the Advocates Act applies only to advocate-client costs.
- Any complaint about a taxing officer's decision, whether on a point of law or on the taxation of any item, is ventilated by way of a reference to the judge under paragraph 11 of the Advocates Remuneration Order.
- In exercising discretion to enlarge time under paragraph 11(4), the Court considers the length of delay, reasons for delay, chances of the reference succeeding and prejudice to the respondent.
- Costs follow the event under Section 27 of the Civil Procedure Act.
Court orders
#- 1.The firm of H&K Law is hereby granted leave to come on record for the Applicant.
- 2.The 1st Respondent shall have costs of the application.
- Jurisdiction invoked
- Article 159(2) of the Constitution of Kenya; Sections 1A, 1B & 63(e) of the Civil Procedure Act; Section 51(2) of the Advocates Act; Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kones (Suing as the Administrator of the Estate of Kipkalya Kiprono Kones) v Kones & another (Environment and Land Miscellaneous Application E011 of 2022) [2026] KEELC 1573 (KLR)", Case Analysis (2026). Not stated in the judgment (underlying suit referenced as Kericho ELC Case No. 34 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1573/eng@2026-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.