Kemboy Law Advocates v Narok County Government (Miscellaneous Application E028 of 2023) [2024] KEELRC 4 (KLR)
The bottom line
#A Kenyan court ruled that the Taxing Officer, not the Judge, must first hear objections to an advocate's bill of costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the taxing officer to entertain a preliminary objection to a bill of costs
The taxing officer has jurisdiction to hear and determine the preliminary objection at first instance; the reference to the Judge was erroneous and is set aside
Paragraph 13A of the Advocates (Remuneration) Order empowers the taxing officer to summon witnesses, administer oaths and adopt all such other proceedings as may be necessary to determine any matter in dispute before her. The phrase 'any matter in dispute' extends to applications such as preliminary objections. Court of Appeal authority (Sharma; Otieno Ragot; C.B. Gor) establishes that the ARO is a complete code and that applications challenging bills scheduled for taxation should be dealt with by the taxing master first, with recourse to a Judge only by way of reference.
The limited circumstances in which a Judge may seize jurisdiction over a taxation matter
A Judge may intervene only where a party aggrieved by a taxing officer's decision files a reference under paragraph 11, where parties consent under paragraph 12, or in a suit for recovery of costs where section 49(a) bars judgment until costs are taxed
Sections 48 and 49(a) of the Advocates Act permit a Judge to entertain striking-out applications at first instance only in a suit for recovery of costs, and even then judgment cannot be entered until costs are taxed and certified, save by consent. No such suit exists here; the matter is a pure taxation proceeding, so the taxing master retains original jurisdiction.
Legal principles established
#- A taxing officer has jurisdiction under paragraph 13A of the Advocates (Remuneration) Order to determine any matter in dispute before him or her, including a preliminary objection challenging the competency of a bill of costs, before any escalation to a Judge
- A Judge's jurisdiction in a taxation matter is confined to references under paragraph 11, references by consent under paragraph 12, or suits for recovery of costs under sections 48 and 49(a) of the Advocates Act where judgment cannot be entered until costs are taxed and certified
Court orders
#- 1.The Taxing Officer's decision/directions referring the Client/Respondent's Notice of Preliminary Objection dated 25th July 2023 to the Judge are set aside
- 2.The preliminary objection is referred back to the Deputy Registrar for further directions
- 3.Costs in the cause
- Jurisdiction invoked
- Paragraphs 11, 12 and 13A of the Advocates (Remuneration) Order, 2009; sections 48 and 49(a) of the Advocates Act; section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemboy Law Advocates v Narok County Government (Miscellaneous Application E028 of 2023) [2024] KEELRC 4 (KLR)", Case Analysis (2024). Not stated in the judgment (appears to be Nakuru ELRC Miscellaneous Application No. E028 of 2023, but the number is not printed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/4/eng@2024-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.