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ELRCDismissedNot stated in the judgment· [2021] KEELRC 1610 (KLR)

Ludwick Musindi v Nancy Nduta [2021] KEELRC 1610 (KLR)

Employment and Labour Relations Court
19 January 2021
NMNzioki wa Makau
1,193 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to extend time for challenging a taxed advocate-client bill because the applicant showed no compelling reason for the delay.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Court by Chamber Summons seeking enlargement of time to file an objection to taxation under Rule 11(1) of the Advocates Remuneration Order and a stay of execution of the Deputy Registrar's taxation award issued on 12 March 2020. The motion was supported by grounds on the face of the motion and the affidavit of the Applicant's counsel, Muema Kitulu, sworn on 22 May 2020. Although not formally opposed, the Court allowed the Claimant/Respondent to argue in opposition under Article 159(2)(d). The Applicant contended she was not served, that the reference raised weighty questions of law including jurisdiction and excessive figures, and asked to be allowed to knock at the door of justice. The Claimant/Respondent countered that the taxation notices were served by email, that the same issues had been raised before the Taxing Master, and relied on Republic v Kenyatta University & Another [2018] eKLR to urge dismissal. The Court set out Rule 11 of the Advocates Remuneration Order verbatim and applied the Supreme Court's decision in Moses Mwicigi & 14 Others v IEBC & 5 Others [2016] eKLR on the importance of procedure. It held that no cogent or compelling reason for the extension had been advanced, that service of the taxation notices was proved on the affidavits, and that the late challenge was incompetent. The motion was dismissed with costs to the Claimant/Respondent.

Key legal issues

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01

Whether extension of time to file a reference against a taxation decision should be granted

Holding

The application for extension of time was refused because no cogent or compelling reason was advanced and the applicant had been duly served with the taxation notices.

Reasoning

Rule 11 permits extension in exceptional cases. The applicant's only explanation was non-service, but affidavits on record showed the taxation notices were duly served, so the applicant could not claim to have been blindsided. Applying the Supreme Court's guidance in Moses Mwicigi, procedure is the handmaiden of justice; a litigant who overlooks a procedural step bearing on just determination risks having the pleadings declared incompetent. The late challenge was therefore incompetent and fit for dismissal.

p. 2

Legal principles established

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  • A party seeking to file a reference out of time under Rule 11 of the Advocates Remuneration Order must advance cogent and compelling reasons for the extension

Court orders

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  1. 1.The motion seeking enlargement of time to file a reference out of time and stay of execution of the taxation award is dismissed
  2. 2.Costs of the motion to the Claimant/Respondent

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), (2), (3), (4)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (2)

  • Republic v Kenyatta University & Another
    [2018] eKLR
  • Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others
    [2016] eKLR
Jurisdiction invoked
Rule 11(4) of the Advocates Remuneration Order (discretion to enlarge time); Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ludwick Musindi v Nancy Nduta [2021] KEELRC 1610 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1610/eng@2021-01-19

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