[2025] KEELC 3069 (KLR)

Muri Mwaniki & Wamiti Advocates v Gachoya (Miscellaneous Application 41 of 2018) [2025] KEELC 3069 (KLR) (25 March 2025) (Ruling)

Neutral citation: [2025] KEELC 3069 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Miscellaneous Application 41 of 2018

JM Onyango, J

March 25, 2025

Between

Muri Mwaniki & Wamiti Advocates

Advocate

and

Johnson Mwangi Gachoya

Client

Ruling

1. M/s Muri Mwaniki Thige & Kageni LLP (referred to in this ruling as “the Advocate/Applicant”) filed an Advocate-Client Bill of Costs dated 2/11/2018. The Advocate/Applicant canvassed the same through written submissions dated 17/6/2019. Johnson Mwangi Gachoya (referred to in this ruling as “the Client/Respondent”) opposed the Bill of Costs through written submissions dated 12/6/2019. Upon consideration of the Bill of Costs and the parties’ respective submissions, the taxing officer rendered a ruling dated 15/8/2019 dismissing the Advocate/Applicant’s Bill of Costs on the ground that there was no evidence that the Client/Respondent instructed the applicant to act on his behalf.

2. Dissatisfied with the decision of the taxing officer, the Advocate/Applicant filed a reference through a chamber summons application dated 4/12/2023, inviting the court to set aside the ruling of the taxing officer rendered on 15/8/2019. The Advocate/Applicant also sought an order that this court proceed to tax the bill of costs dated 2/11/2018 or in the alternative remits the Advocate/Client Bill of Costs dated 2/11/2018 to another taxing officer for taxation with directions on the taxation.

3. The Client/Respondent opposed the application through his replying affidavit sworn on 20/9/2024 and written submissions dated 11/11/2024. A ruling was scheduled for 11/12/2024. However, on the said date the court (Eboso J) delivered a ruling vacating the order reserving a ruling date on the reference. The court further ordered the parties to address it by way of affidavit evidence on the following two issues:i.Whether this court is seized with jurisdiction to entertain the Bill of Costs and the Reference in this suit, noting that the dispute in the cause is about whether or not the respondent is liable to pay the advocate costs of an aborted mortgage transaction.ii.Whether an enlargement of time was procured prior to the filing of the reference outside the prescribed limitation period of 14 days.

4. In compliance with the said orders, the Advocate/Applicant filed an affidavit sworn by Martin G. Mwaniki on 7/2/2025. The Advocate/Applicant contends that paragraph 11 (1) of the Advocates Remuneration Order 2009 requires any party objecting to the decision of the taxing officer to give notice in writing to the taxing officer of the items of taxation to which he/she objects within 14 days after the decision.

5. Counsel further contends that the decision of the taxing officer having been made on 15/8/2019, then the fourteen days period within which to lodge the Notice of Objection expired on 29/8/2019. Counsel adds that given that the letter objecting to the taxation of Item No.1 to Item No. 45 was lodged on 28/8/2019, then he was within the prescribed time. Counsel states that according to paragraph 11 (2), the 14-day period within which to apply to a judge through chamber summons starts running from the date of receipt of the reasons for taxation.

6. It is the Advocate/Applicant’s case that he received the reasons on 20/11/2023 and lodged the reference through chamber summons dated 4/12/2023 on the same day within the 14 days which were to expire on 4/12/2023. Counsel adds that there was therefore no need for enlargement of time.

7. The Advocate/Applicant states that the subject transaction that led to taxation related to the registration of a charge on the Client/Respondent’s parcels of land (Land Parcel Number Ruiru Kiu Block 10/507 and Ruiru Kiu Block 10/280, therefore, this court has jurisdiction to determine the matter herein.

8. The Client/Respondent on the other hand filed a replying affidavit sworn by himself on 5/2/2025 together with a notice of preliminary objection of even date.

9. It is the Client/Respondent’s case that this court lacks jurisdiction to hear and determine the matter given that the subject matter of the dispute between the parties does not directly relate to land use, environmental impact, or occupation. The Client/Respondent contends that the matter falls within the civil jurisdiction of the High Court. The Client/Respondent further contends that the Deputy Registrar of this court at the time (Hon. V. Kachuodho) lacked the jurisdiction to tax the bill of costs or issue the ruling dated 1st August 2019.

10. It is the Client/Respondent’s contention that the Advocate/Applicant did not procure an enlargement of time to file the reference outside the prescribed limitation period of 14 days. The client/respondent states that this objection was filed to challenge the ruling of the taxing officer delivered on 1/8/2019 vide a chamber summons dated 4/12/2023. The Client/Respondent further states that prior to filing the objection, the Advocate/Applicant wrote two letters addressed to the Deputy Registrar. A letter dated 28/8/2019 seeking to be supplied with certified copies of the ruling and a letter dated 28/8/2023 stating that they had objected to the ruling and requesting the reasons for the ruling. He adds that he was served with this reference application in February 2024, five (5) years after the decision of the taxing officer on the advocate/client bill of costs

Analysis and Determination 11. Having considered the two Affidavits by the parties and the Preliminary Objection filed by the Client/Respondent as well as the applicable law and authorities, I find that the issues for determination are as follows:i.Whether this honourable court has jurisdiction to entertain the bill of costs and the reference in this suit.ii.Whether enlargement of time was procured prior to filing the reference outside the prescribed limitation of 14 days.

12. On the first issue, Article 162 (2) and (3) of the Constitution of Kenya 2010 provides that:“(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.(3)Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).”

13. Pursuant to the said Article, parliament established the Environment and Land Court Act No. 19 of 2011. Section 13 of the Act provides that the Environment and Land Court has power to hear and determine disputes relating to:i.Environment planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, materials and other natural resources.ii.Compulsory acquisition of land.iii.Land administration and management.iv.Public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and,v.Any other dispute relating to environment and land.

14. The court in the case of The owners of Motor Vessel, Lillian S vs Caltex Oil Kenya Limited (1989)KLR, emphasized the importance of a court being seized with jurisdiction as follows:“Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction there will be no basis for continuation of proceedings pending other evidence. A court of law down its tools in respect of the matters before it the moment it holds that it is without jurisdiction.”

15. The Court of Appeal in the case of Cooperative Bank of Kenya Limited vs Kangethe Njuguna & 5 Others [2017]eKLR was of the view that a charge/mortgage does not constitute use of land and as such does not fall within the jurisdiction of the Environment and Land Court. The Court of Appeal in the aforementioned case stated as follows regarding the use of land:“Accordingly, for land use to occur, the land must be utilized for the purpose for which the surface of the land, the air above it or ground below it is adapted. To the law, therefore, land use entails the application or employment of the surface of the land and/or the air above it and/ or ground below it according to the purpose for which that land is adapted. Neither the cujus doctrine nor Article 260 whether expressly or by implication recognizes charging land as connoting land use.”

16. The Court of Appeal further defined a charge and whether a charge fits the definition of use of land as follows:“By definition, a charge is an interest in land securing the payment of money or money’s worth or the fulfilment of any condition (see Section 2 of the Land Act). As such, it gives rise to a relationship where one person acquires rights over the land of another as security in exchange for money or money’s worth. The rights so acquired are limited to the realization of the security so advanced (see Section 80 of the Land Act). The creation of that relationship therefore, has nothing to do with use of the land (as defined above). Indeed, that relationship is simply limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor.”

17. The Court of Appeal went on to rule that a charge does not constitute use of land within the definition in Article 162 of the Constitution. When discussing whether a charge is an instrument granting an interest in land as per Section 13(d) of the Environment and Land Court Act, the Court of Appeal stated as below:“Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court.”

18. According to the Advocate/Applicant, he received instructions to draw and register a legal charge over Land Parcel Number Ruiru/Kiu Block 10/507 and Ruiru/Kiu Block 10/280 registered in the name of the Client/Respondent charged to Equity Bank. The instructions were with respect to the creation of a security to secure a loan facility of Kshs 1,100,000 being a takeover facility by ABC Bank from Equity Bank. This court is of the view that the transaction did not amount to “use” of land hence the Bill of Costs ought to have been filed at the High Court.

19. On the second issue, paragraph 11 of the Advocate Remuneration Order provides as follows:“Objection to decision on taxation and appeal to Court of Appeal. 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 subparagraph (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 made 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.”

20. The impugned ruling was rendered on 1st August 2019. The Client/Respondent contends that after that, the Advocate/Applicant wrote two letters to the Deputy Registrar. One dated 28th August 2019 and the other 28th August 2023 seeking to be supplied with certified copies of the ruling, stating that they were objecting to the same and requesting for reasons of the ruling. According to paragraph 11 (a) of the Advocate Remuneration Order, the first letter ought to have been written no later than 15th August 2019. There is also no evidence to show that leave to file the reference out of time was granted.

21. In view of the foregoing, the reference lacks merit and it is hereby struck out. The Advocate/Applicant shall bear the costs of the application.

DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 25TH DAY OF MARCH 2025. ………………………J. M ONYANGOJUDGEIn the presence of :Mr Owiro for the ApplicantNo appearance for the RespondentCourt Assistant: Hinga