https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4531

Mulandi t/a Mulandi & Mulandi Company Advocates v Mutisya & another (Miscellaneous Application E001 of 2026) [2026] KEELC 4531 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEELC 4531 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Miscellaneous Application E001 of 2026 EG Nderitu, J July 17, 2026 IN THE MATTER OF ADVOCATE/CLIENT BILL OF COSTS IN THE MATTER OF THE ADVOCATES ACT CAP 16, LAWS OF KENYА Between Martin Mati Mulandi t/a Mulandi & Mulandi Company Advocates Applicant and Maria Mumbua Mutisya 1st Respondent Joseph Muthee Nyaruai 2nd Respondent Ruling 1.This Ruling relates to a reference made to this court by the Deputy Registrar Environment and Land Court Kwale Hon Joy Mutimba pursuant to the provisions of Paragraph 12 of the Advocates Remuneration Order which provides;“With the consent of both parties, the taxing officer may refer any matter in dispute arising out of the taxation of a bill for the opinion of the High Court. The procedure for such reference shall follow that of a case stated but shall be to a judge in chambers.” 2.The reference seeks the opinion of this court as to whether or not the ELC Court is clothed with the necessary jurisdiction to tax the Advocate /Client Bill of cost herein. Genesis of the dispute 3.The applicant herein Martin Mati Mulandi t/a Mulandi & Mulandi Company Advocates filed an Advocate/Client Bill of Cost dated 20th January 2026 seeking taxation of cost arising out of his legal services rendered to the two Respondents in Kwale ELCLC NO E010 of 2023. 4.In response, each of the Respondents filed a notice of preliminary objection dated 11th February 2026 and 10th February 2026 respectively seeking to have the Bill struck out. The 2nd Respondent also filed a Replying Affidavit. 5.The 1st Respondent objection dated 11th February 2026 was to the effect that the Environment and Land Court lacks jurisdiction to entertain an Advocate/Client Bill of Cost and that the same can only be heard by the High Court in accordance with Section 2 of the Advocates Act and paragraph 10 of the Advocates Remuneration Order. 6.The 2nd Respondent point of objection and Replying Affidavit were on issues that falls within the jurisdiction of the taxing officer in the first instance and are therefore not subject of this ruling. Submissions by the Applicant 7.The counsel for the applicant appreciated the fact that questions of jurisdiction must be dealt with first as without jurisdiction, a court of law downs its tools and makes no further step. He referred the court to the locus classicus case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR I , and urged the court to find that the Environment and Land Court has jurisdiction to entertain the Advocate/Client Bill of Cost and dismiss the Preliminary Objection. 8.Counsel submitted that, the Bill of Costs arose from lawful instructions received and performed on behalf of the Respondents at the Kwale Environment and Land Court in ELC Case No. E010 of 2023 and that being a matter under the Environment and land courts, any costs claimed and incurred in the matter is taxable by the Deputy Registrar Environment and Land Court and not the High Court. He gave reference to the case of Omusundi ta Morgan Omusundi Law Firm Advocates vs Kundu (Environment and Land Miscellaneous Application E014of2022) 2023KEELC21356(KLR) (Ruling) which cited with approval the case of Taparn vs Roitei [1968] EA 618 where it was held that;“…inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered”. Submission by the 1st respondent 9.For the 1st Respondent, counsel submitted that the Environment and Land Court lacks jurisdiction to tax a bill of cost between an Advocate and his client. He was of the view that such jurisdiction rest with the High Court by virtue of the provisions of Section 2 of the Advocates Act and Paragraph 10 of the Advocates Remuneration Order in which reference to the word 'Court" means the High Court. 10.Counsel gave reference to Article 162 of the Constitution, the Environment and Land Act No 19 of 2011 and the Court of Appeal case of Karisa Chengo & 2 Others vs Republic in support of his argument that though of equal status with the High Court, the Environment and Land Court is a distinct court whose jurisdiction is spelt out under Section 13 of the Environment and Land Court Act and has no jurisdiction over matters specifically reserved for the High Court. Analysis and determination 11.“So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” [ Mukisa Biscuit Manufacturing Co Ltd v West End Distributors ltd [1969] EA 696]To start with, there seems to be a general consensus by the counsels for the respective parties that a challenge to the jurisdiction of the court is a pure point of law to be taken as a preliminary objection. Indeed, jurisdiction is conferred by either the Constitution or statute, can never be inferred from the conduct of the parties or conferred by consent. It is not dependant on the strength of a case, it requires no factual basis or elaborate arguments. Without it, the case dies, irrespective of its strength. 12.The centrality of the issue of jurisdiction comes out clear in the holding of Justice Nyarangi in the locus classicus case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR I where he stated;“Jurisdiction is everything without which a court of law has no power to make one more step. Where a court of law has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter the moment it holds the opinion that it is without jurisdiction."It is therefore quite clear that, the issue of whether or not an Advocate/Client bill of cost arising out of a matter heard and concluded before the Environment and Land court can be filed in the same Court for taxation by the Deputy Registrar, Environment and Land Court, is not a pedestrian one. Without jurisdiction the Deputy Registrar would have no power to tax the bill. 13.The argument by the 1st Respondent to the effect that the jurisdiction to tax the Advocate/Client bill rest with the Deputy Registrar High Court is informed by the literal and plain wordings of paragraph 10 of the Advocates Remuneration Order which provides:“The Taxing Officer for the taxation of bills under this Order shall be the Registrar or a District or Deputy Registrar of the High Court or, in the absence of a Registrar, such other qualified officer as the Chief Justice may, in writing appoint; except that in respect of bills under Schedule 4 to the order, the taxing officer shall be the registrar of trade marks or any Deputy or Assistant Registrar of Trade Marks.”The provision confers jurisdiction upon qualified persons appointed by the Chief Justice as Registrar, Deputy Registrar or such other qualified officers. 14.Prior to the promulgation of the Constitution 2010 and the creation of the Environment and Land Court Act, the only court with Registrar or Deputy Registrar or such other qualified person appointed for purposes of taxation under Paragraph 10 was the High Court. The Constitution however created specialised courts with status of the High Court. Article 162(2) of the Constitution of Kenya 2012 provide as follows: -“(1)The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land."Registrars and Deputy Registrars of the specialized Courts were appointed to perform similar administrative and judicial functions in their respective courts as their counterparts in the High Court. To this end, Section 9 and 11 of the Environment and Land Court Act, provides for the appointment and functions of a Registrar of this Court. Among the functions of the Deputy Registrar of the Environment and Land Court is the taxation of Advocates/ Client bill of cost that relates to matters heard by the court. To demand that such bills be filled in the High Court and taxed by the Deputy Registrar High Court would be an absurdity that the provision could not have anticipated within the context of the prevailing post 2010 circumstances where we have specialized courts of Equal Status with the High Court. 15.Such absurdity becomes even clearer when one looks at the Remuneration Order in totality. Schedule 6 which guides the assessment of costs including Advocate/Client bill of cost in respect of proceeding conducted in the High Court and specialised courts is titled ‘costs of proceedings in the High Court’. Applying the literal rule of statutory interpretation would mean that parties in proceedings before the specialised courts are not entitled to cost and similarly, advocates are not to charge their clients for services rendered in any matter conducted before the specialised courts. Such an interpretation would run afoul the provisions of Section 13 (7) of the Environment and Land Court Act which provide that one of the reliefs that the court can grant is an award of costs. Such cannot have been the intention of the drafters. Undoubtedly, the Deputy Registrar, Environment and Land Court, has the requisite jurisdiction to tax an Advocate/Client Bill of Cost 16.Indeed, several authorities where the issue has been considered fortifies such a holding. In Sala and Mudany Advocates v County Government of Kisumu [2024] KEHC 11960 (KLR), while striking out an Advocate/Client filed in the High Court but related to services rendered in the ELC Court Shariff LJ held;“Whereas the Applicant herein filed an advocate/client bill of costs dated 16.4.2024, the Deputy Registrar noted that the subject matter was a case before the Environment & Land Court wherefore she directed that this file be placed before a Judge. The bill of costs was filed by the law firm of Messrs. Sala & Mudany Advocates. Given that the Applicant is a law firm, it is well versed with the law and is alive to the fact that this court has no jurisdiction to tax its bill of costs. (See article 162/2 (b) and Section 13 of the Environment and Land Court Act.” 17.In Kangoli & Company Advocates v Ndwaru [2025] KEELC 4377 (KLR) Justice M. D. Mwangi, a judge of this court stated;“Under the Advocates Act, the taxing officer for purposes of taxation of bills under the Advocates Remunerations Order is the Registrar, or District or Deputy Registrar of the High Court, or such other qualified person as the Chief Justice may in writing appoint. The Deputy Registrar of this court therefore had the jurisdiction to tax the advocate-client bill of costs presented by the applicant herein, the subject matter of these proceedings as she did.” 18.It is clear beyond peradventure that the Deputy Registrar, Environment and Land Court at Kwale has the requisite jurisdiction to tax the Advocate/Client Bill of Cost filed herein and that this Miscellaneous Application was properly filed before this court. I do so find. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 17th DAY OF JULY 2026.HON E G NDERITU L JELC KWALEIn the presence of: -Mr Omondi for the ApplicantMr Kamau for the 2nd RespondentC/A Halima