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ELRCPartially AllowedChamber Summons dated November 10, 2021· [2023] KEELRC 2782 (KLR)

PG Kaingu & Co Advocates v Simbah (Cause 2054 of 2016) [2023] KEELRC 2782 (KLR)

Employment and Labour Relations Court
31 October 2023
MOM. Onyango
1,602 words in judgment
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The bottom line

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A Kenyan court allowed a law firm's late challenge to a taxation ruling, but the firm still paid the costs of its own application.

What this practically means

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Executive summary

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The applicant law firm of P.G. Kaingu brought a chamber summons dated November 10, 2021 under article 162(2)(a) of the Constitution, rule 11(2) and (4) of the Advocates Remuneration Order and section 3A of the Civil Procedure Act seeking enlargement of time to file a reference against a taxation ruling delivered by the Deputy Registrar, Hon. N. Kyanya, on November 20, 2020. The Deputy Registrar had vacated her earlier taxation ruling of March 5, 2020 on the basis that a consent between the claimant and the respondent provided that each party would bear its own costs. The applicant contended that the law firm was not a party to that consent, which concerned party-and-party rather than advocate-client costs, and that the client, himself an advocate, had not paid professional fees. The respondent opposed, arguing the applicant had not followed the proper procedure for a reference, had previously filed review applications that were dismissed or withdrawn, and that the delay was inordinate and an abuse of process. The sole issue was whether sufficient cause had been shown to enlarge time. Applying Leo Sila Mutiso, National Union of Mineworkers, Patel and Philip Chemowolo, the court held the delay of over a year was sufficiently explained, the reference had good prospects of success, and the respondent would otherwise unjustly benefit from the advocate's unpaid services. A blunder by the applicant was no reason to deny him a hearing on the merits. The application was allowed, with time enlarged to file the reference, but the applicant was to bear the costs of the application in view of the procedural history. Judgment was delivered at Eldoret on October 31, 2023 by M. Onyango, Judge.

Key legal issues

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01

Whether sufficient cause was shown to enlarge time for filing a reference against the taxation ruling

Holding

Yes - the delay of over one year was sufficiently explained, the reference had good prospects of success, and no prejudice to the respondent outweighed the applicant's right to pursue his professional fees

Reasoning

The court applied the well-settled discretionary factors from Leo Sila Mutiso and National Union of Mineworkers: length of delay, explanation, prospects of success and prejudice. Although the applicant blundered by filing review and wrong applications instead of a reference, the delay was explained. The respondent had not paid professional fees, and refusing enlargement would let him unjustly benefit from the advocate's labour while the applicant lost his fees. Justice favoured allowing the application.

p. 4

Legal principles established

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  • In deciding whether to extend time, the court considers the length of the delay, the reason for it, the chances of the appeal succeeding, and the degree of prejudice to the respondent
  • A blunder or mistake by a party is not by itself a reason to deny that party a hearing on the merits

Court orders

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  1. 1.The application is allowed and time is enlarged for the applicant to file a reference to the court on the taxation ruling delivered on November 20, 2020
  2. 2.The applicant shall bear the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Advocates Remuneration OrderRule 11(2), (4)
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Appeal No. 255 of 1997
  • National Union of Mineworkers v Council for Mineral Technology
    [1998] ZALAC 22
  • Patel v E.A. Cargo Handling Services Ltd
    [1974] E.A. 75
  • Philip Chemowolo & another v Augustine Kubende
    [1986] KLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution, rule 11(2) and (4) of the Advocates Remuneration Order, section 3A of the Civil Procedure Act

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, "PG Kaingu & Co Advocates v Simbah (Cause 2054 of 2016) [2023] KEELRC 2782 (KLR)", Case Analysis (2023). Chamber Summons dated November 10, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2782/eng@2023-10-31

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