Kemboy Law Advocates Formerly Trading as Kemboy & Co. Advocates v Mruttu (Environment and Land Miscellaneous Application E142 of 2023) [2025] KEELC 6395 (KLR) (18 June 2025) (Ruling)
Neutral citation:
[2025] KEELC 6395 (KLR)
Republic of Kenya
Environment and Land Miscellaneous Application E142 of 2023
J Omange, J
June 18, 2025
Between
Kemboy Law Advocates Formerly Trading as Kemboy & Co. Advocates
Applicant
and
John Mruttu, the Governor of Taita-Taveta County
Respondent
Ruling
1.There are two applications coming up for Ruling. In the application dated 23rd September, 2024 the Client/ Applicant seeks for extension of time within which to file a reference against the taxing masters Ruling and the Certificate of Taxation dated 20th May 2024 arising from Nairobi Misc ELC 142 of 2023. The client further prays that the Ruling delivered on 23rd April 2024 and Certificate of costs dated 20th May 2024 be set aside and taxed afresh. The application is brought on the grounds that the applicants were not served with the bill of costs and the taxation notice and only learned of the same in August 2024. The application is opposed by the Advocate/ Respondent who states that the delay has not been sufficiently explained hence the Client/ Applicant is not entitled to the discretion of the court.
2.In the application dated 5th December 2023 the Advocate/ Applicant prays that the certificate of costs dated 5th December 2023 be converted into a Judgement of the court and a decree be issued thereon. That interest be paid at the rate of 14% per annum from 8th August 2021 until payment in full.
3.Both counsels filed submissions in respect of the two applications. The advocate raised several issues relating to the clients application dated 23rd September 2024. The first issue relates to the jurisdiction of this court which is challenged on two grounds namely that the Reference application was filed in a separate file from the original file in which the taxing master rendered his decision namely ELC E 142 of 2024. Instead the Client has opted to file the application for extension of time in Misc E 197 of 2024. The Advocate submits that the application is incompetent and fatally defective. Counsel insists that the courts jurisdiction to hear a reference can only be invoked when the application is filed in the same file as the taxation proceedings.
4.The second limb of the argument on jurisdiction is that the Client after filling an application for extension of time has gone ahead to seek substantive orders. It is the submission of the advocate that the client has failed to comply with the requirements for filing a reference by failing to file a notice of objection. In addition to the foregoing the advocate submits that the client has failed to give sufficient reasons for the court to exercise discretion to extend time and that no sufficient grounds have been given for stay of execution.
5.Counsel for the client argues that there is no procedure for seeking extension of time under Paragraph 11(4). As such the application for extension of time was properly raised in a separate cause. In support of the application for extension of time, counsel for the client submits that the client was not aware of the taxation proceedings hence could not file the notice of objection within time. Counsel urges the court to allow extension of time so that the colossal bill can be challenged. Counsel further submits that the court should grant a stay of execution failing which the client would suffer substantial loss.
6.The court having considered the issues raised in both submissions distils the following issues for determination;
- Whether the court has jurisdiction to entertain the application
- Whether extension of time should be granted to Client/ Respondent to file the reference
- Whether the court should enter Judgement on the Certificate of Costs
7.The question of jurisdiction arises out of the fact that the Client filed the application for extension of time in a separate file Misc E 197 of 2024 and yet there was an ongoing Misc Application E 142 of 2024 in which the Advocate had filed an application for adoption of the Certificate of Costs as a Judgement of the court. It is a matter of record that on 27th August, 2024 both counsel for the advocate and the client appeared before the Taxing Master. On this date the Taxing Master Hon Kiplagat referred both parties to Hon Justice David Mwangi. When the parties appeared before Justice Mwangi on 25th September 2024, counsel for the client informed the court that a reference had been filed in Misc E 197 of 2024. The file was then referred to this court which gave directions on the hearing of both applications.
8.The simple question is should a reference or application for extension of time be filed in the same file as the taxation by the taxing master and in the event that this is not done what is the fate of such an application?
9.Paragraph 11 of the Advocates Remuneration Order provides;1.“Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
2.The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a Judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
3.Any person aggrieved by the decision of the Judge upon any objection referred to such Judge under subsection (2) may, with the leave of the Judge but not otherwise, appeal to the Court of Appeal.
4.The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”
10.The courts have given judicial interpretation to this section. The sequence for filing a reference is as follows;
- Issue a notice of objection within 14 days on the items objected
- The taxing officer sets out the reasons for the decision on the various items
- Upon receipt of the reasons the objector is to file a reference to the High Court within 14 days
- If dissatisfied with the decision of the High Court, the objector may with leave of the court file an appeal
11.That is the procedure as outlined in paragraph 11 (1) – (3). Paragraph 11 (4) allows a party who has missed the time lines in the preceding sections, to seek extension of time in the High Court by way of Chamber Summons. It is the argument of the Client that this application and indeed the reference can be filed in a separate suit.
12.There is no doubt that Article 159 of the Constitution mandates the court to determine cases without undue regard to technicality. This has been at times viewed as a license to throw all procedure out of the window. This could have not been the intention of this provision. There are procedures which if not followed, the confusion that would result would itself result in grave injustice. For instance, can an application to set aside a Judgement be filed in another file? Definitely not.
13.In this instance even without express provisions, even without considering the judicial decisions that have clarified the issue, it is clear to me that the only file in which the elaborate procedure outlined in paragraph 11 can be filed, is in the file wherein the taxation was carried out. How can extension be sought and a reference filed simultaneously in a separate file as has happened in this matter? Not only does such an application fail to properly invoke the jurisdiction of the court, but it also ends up in a situation whereby there is a multiplicity of suits which then result in inefficiency at best but at worst can result in an abuse of the process of the court.
14.This court is enjoined under Section 1 B of the Civil Procedure Act to achieve the just determination of disputes; efficient disposal of business; efficient use of resources; timely disposal of proceedings at an affordable cost and use of suitable technology.
15.I find that the court has no jurisdiction to hear the application as filed. The application is thus struck out with costs.
16.On the application by the Advocate/ Client, Section 51 (2) provides;1.Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.2.The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.
17.From this section, Judgement on costs is therefore subject to the following conditions;
- A certificate of the taxing officer by whom the bill was taxed has been issued
- The said certificate of taxation has not been set aside or altered by the court and the retainer is not disputed.
18.In the instant case there is a certificate of taxation dated 20th May 2024. In view of my findings on the application dated 19th November 2024 there is no pending reference. Retainer is also not disputed. In the circumstances I find that the application is merited.
19.On the question of interest, the courts have previously held that where the advocate has not proved that he brought up the issue of costs with his client at the point of submitting the bill of costs, then he fails to satisfy the conditions as set out in Rule 7 of the Advocates (Remuneration) Order which stipulates that: “An advocate may charge interest at 14% per annum on his disbursements and costs, whether by scale or otherwise, from the expiry to one month from the delivery of his bill to the client, providing such claim for interest is raised before the amount has been paid or tendered in full.”
20.In the case of Kerongo & Company Advocates Vs Africa Assurance Merchant Co. Limited [2019] eKLR the court held; ‘An advocate who does not provide proof that he had raised the issue of interest before the amount in the Bill of Costs has been paid or tendered in full will not be paid the interest chargeable under Rule 7 of the Advocates Remuneration Order.
21.In the instant case, the advocate has not shown in his supporting affidavit that he raised the issue of interest before the bill of costs was taxed. As such I will only award interest from date of the Judgement.
22.In the end the court issues the following orders in respect of the two matters;a.that the application dated 23rd September 2024 in Misc E 197 of 2024 is hereby struck out and the file closedb.costs of the suit assessed at Kshs 20,000 is awarded to the advocateIn respect to the application dated 21st May 2024 in Misc E 142 of 2023a.Judgement is entered on the certificate of costs dated 20th May 2024b.Interests is awarded at 14 % from the date of Judgementc.Costs to the advocate of Kshs 20,000 for this application
RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 18TH OF JUNE, 2025JUDY OMANGEJUDGEIn the presence of:Court Assistant CatherineMr. Makori for ApplicantMrs. Mwangi for Respondent