Ndururi v Judicial Service Commission (Cause 92 of 2019) [2023] KEELRC 532 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 3-day delay in filing the reference was inordinate
The delay of 3 days was not inordinate in the circumstances of the case
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.
Whether the applicant provided sufficient reason for the default
Yes - the applicant's counsel's mis-diarization of the ruling date was a sufficient reason and should not be visited on the client
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.
Whether limb 3 of the application (assailing the Taxing Master's decision on merits) was properly before the court
No - limb 3 was prematurely brought and the court declined to consider submissions on the merits of the Taxing Master's decision
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.
Whether the supporting affidavit contradicted the grounds on the face of the application
No - reading the affidavit as a whole, no contradiction was discerned
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.
Legal principles established
#- 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
#- 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.Limb 3 of the application (set aside/interfere/substitute the Taxing Master's ruling) is declined as prematurely brought
- 3.Each party shall bear its own costs
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.