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ELRCPartially AllowedNotice of Motion dated 3rd February 2025 (arising from a Petition filed 5th May 2020)· [2025] KEELRC 1403 (KLR)

Mutisya v Cortec Systems & Solutions (Petition 93 of 2020) [2025] KEELRC 1403 (KLR)

Environment and Land Court of Kenya
15 May 2025
CBC. N. Baari
1,599 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a bill of costs because the law firm that filed it never got court permission to take over the case after judgment.

What this practically means

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Executive summary

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By a Notice of Motion dated 3rd February 2025, the Respondent in a concluded petition sought striking out, quashing and/or dismissal of the Petitioner's Party and Party Bill of Costs dated 29th November 2024. The Applicant contended that the firm of Mokua Ndubi & Co. Advocates, which lodged the bill, was a stranger to the proceedings, having come on record after judgment (entered 17th June 2021) without leave of court as required by Order 9 Rule 9 of the Civil Procedure Rules, and that the bill was otherwise defective for non-compliance with Schedule 6 and Rule 69 of the Advocates Remuneration Order. The Petitioner opposed, asserting she instructed the incoming firm on 5th February 2024 and that a consent between the outgoing firm (Musyoki Mogaka & Co. Advocates) and the incoming firm was filed and served on 5th February 2025; she maintained the bill complied with Rule 69. The court framed two issues: whether Mokua Ndubi & Co. Advocates were properly on record, and whether the bill was defective. It found the consent postdated the bill, had not been adopted as an order of the court, and was unconfirmed by the outgoing firm; the firm was therefore a stranger to the proceedings. On form, the court held that a bill of costs, unless on a reference, is a matter for the Taxing Master. The court struck out the bill solely on the ground it was lodged by a stranger, and awarded the costs of the motion to the Applicant.

Key legal issues

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01

Whether Mokua Ndubi & Co. Advocates were properly on record after judgment without leave

Holding

They were not properly on record and were strangers to the proceedings; the consent filed post-judgment was not adopted as an order of the court and postdated the bill of costs.

Reasoning

Judgment had been entered on 17th June 2021 and a decree extracted by the previous firm. Order 9 Rule 9 requires leave to come on record after judgment. The consent between the outgoing and incoming firms was filed on 5th February 2025, after the bill of costs was filed, was never adopted as an order of the court, and the outgoing firm filed no affidavit confirming consent. The requirement protects outgoing firms; absent leave or adopted consent, the incoming firm was a stranger.

p. 3
02

Whether the bill of costs was defective for non-compliance with Schedule 6 and Rule 69 of the Advocates Remuneration Order

Holding

The court declined to strike out the bill on grounds of form; form of a bill is for the Taxing Master.

Reasoning

The court held it would be slow to dismiss a bill of costs merely for the form in which it is drawn. Except where a bill comes before the court as a reference from taxation, form is a matter within the mandate of the Taxing Master, and the court would be overstepping by entering that realm. Accordingly, the bill was struck out solely because it was lodged by a stranger to the proceedings.

p. 3

Legal principles established

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  • Leave is required to come on record after judgment, and a firm that comes on record post-judgment without leave is a stranger to the proceedings; a bill of costs lodged by such a stranger will be struck out.
  • Where the outgoing firm of advocates consents to a new firm coming on record after judgment, the court will ordinarily allow the change as the outgoing firm suffers no prejudice.

Court orders

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  1. 1.The Petitioner's Party and Party Bill of Costs dated 29th November, 2024 be and is hereby struck out.
  2. 2.The Petitioner/Respondent shall bear the costs of the motion.

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(b), (c), (d)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Act, Chapter 21 of the Laws of KenyaSections 3A and 63
  • Advocates ActSections 27, 39 and 40
  • Advocates Remuneration Order (2014)Schedule 6; Rule 69(1), Rule 69(3)
Jurisdiction invoked
Sections 3A and 63 of the Civil Procedure Act; Order 2 Rule 15(b),(c),(d), Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mutisya v Cortec Systems & Solutions (Petition 93 of 2020) [2025] KEELRC 1403 (KLR)", Case Analysis (2025). Notice of Motion dated 3rd February 2025 (arising from a Petition filed 5th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1403/eng@2025-05-15

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