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ELRCPartially AllowedCause No 92 of 2019· [2023] KEELRC 532 (KLR)

Ndururi v Judicial Service Commission (Cause 92 of 2019) [2023] KEELRC 532 (KLR)

High Court of Kenya
21 February 2023
2,648 words in judgment
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The bottom line

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Kenya's High Court gave a client 45 more days to challenge a taxing officer's fees ruling, holding a three-day delay caused by an advocate's mistake should not punish the client.

What this practically means

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Executive summary

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The Petitioner/Applicant moved the court by Notice of Motion dated 4th March 2022 seeking leave to file a reference out of time against a ruling of the Taxing Master delivered on 15th February 2022, and further seeking that the court set aside or interfere with the Taxing Master's ruling on item 1 (instructions fees) of the party and party Bill of Costs, or remit it to a different Registrar. The Respondent opposed, contending the application was defective, that paragraph 11 of the Advocates Remuneration Order required a reference within 14 days which the applicant failed to meet, and that the delay was inordinate and unexplained. The court held that the procedure and timelines under paragraph 11 are mandatory but that paragraph 11(4) confers a discretionary power to extend time, to be exercised judiciously guided by case law factors: length of and reasons for delay, prejudice, and whether the application was brought without undue delay. The court found the delay was only 3 days and not inordinate; that the counsel's mis-diarization of the ruling date was a sufficient reason not to be visited on the client; that no prejudice to the Respondent was shown; and that the alleged contradiction between the grounds and the supporting affidavit was not made out. The court declined to consider the merits of the taxation, holding that limb 3 of the application was prematurely brought since the procedural steps preceding a reference had not been undertaken. The application was allowed only to the extent of granting 45 days' leave to take the procedural steps and file the reference; limb 3 was declined and each party ordered to bear its own costs.

Key legal issues

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01

Whether the 3-day delay in filing the reference was inordinate

Holding

The delay of 3 days was not inordinate in the circumstances of the case

Reasoning

The ruling was delivered on 15th February 2022 and the application filed on 4th March 2022. The applicant was required to file an objection within 14 days of the ruling, making the delay one of 3 days. Whether a delay is inordinate depends on the circumstances of each case; here the court was not persuaded the 3-day delay was inordinate.

p. 5
02

Whether the applicant provided sufficient reason for the default

Holding

Yes - the applicant's counsel's mis-diarization of the ruling date was a sufficient reason and should not be visited on the client

Reasoning

The applicant explained that his advocate mis-diarized the matter, leading to absence when the ruling was delivered. The court considered the time between the ruling date and when counsel began following up the matter, concluding the applicant could not be faulted for inaction. The mistake of counsel should not be visited on him.

p. 5
03

Whether limb 3 of the application (assailing the Taxing Master's decision on merits) was properly before the court

Holding

No - limb 3 was prematurely brought and the court declined to consider submissions on the merits of the Taxing Master's decision

Reasoning

Before a reference against a taxing officer's decision can be heard, procedural steps under paragraph 11 of the Advocates Remuneration Order must be undertaken, including obtaining the taxing officer's reasons. These steps had not been undertaken, so the court refrained from considering either party's submissions on the merits of the taxation decision.

p. 3
04

Whether the supporting affidavit contradicted the grounds on the face of the application

Holding

No - reading the affidavit as a whole, no contradiction was discerned

Reasoning

The Respondent argued the grounds (discovery on 4th March 2022) contradicted the affidavit (awareness on 20th February 2022). The court read the affidavit as a whole rather than in part and did not discern the alleged contradiction, accepting the applicant's explanation for the delay.

p. 5

Legal principles established

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  • The procedure and timelines in paragraph 11 of the Advocates Remuneration Order are mandatory, but the court has discretion under paragraph 11(4) to extend time, to be exercised judiciously.
  • An advocate's mistake should not be visited on the client, but the shield is not available in every situation, e.g. where the party failed to follow up on the matter.

Court orders

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  1. 1.The Petitioner's application is allowed only to the extent that he is granted leave of 45 days to undertake all the procedural steps leading to the filing of a reference pursuant to the Advocates Remuneration Order and to file the reference
  2. 2.Limb 3 of the application (set aside/interfere/substitute the Taxing Master's ruling) is declined as prematurely brought
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), (2), (4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Judicial Service Commission v Joseph Riitho Nduriri
    (2021) eKLR
  • Mumias Sugar Company Ltd v Tom Ojienda & Associates
    (2018) eKLR
  • Simoko Enterprises ltd v Deposit Protection Fund Board & 2 others
    (2000) eKLR
  • County Government of Tana River v Miller and Company Advocate
    (2021) eKLR
  • Paul Wanjohi Mathenge v Duncan Mathenge
    (2013) KLR
  • Nickolas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 9 Others
  • Havi Ombongi & Company Advocates v Mary Wanguthi Kamara
    (2022) eKLR
Jurisdiction invoked
Paragraph 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, "Ndururi v Judicial Service Commission (Cause 92 of 2019) [2023] KEELRC 532 (KLR)", Case Analysis (2023). Cause No 92 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/532/eng@2023-02-21

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