[2015] KEHC 2285 (KLR)
The court held that the Advocate/Applicant failed to file the reference within the 14-day period stipulated under Rule 11(2) of the Advocates Remuneration Order after receiving the taxing officer's reasons. No leave to enlarge time was sought. The court rejected the argument that the delay was a mere technicality...
Source-derived case information.
- Citation
- [2015] KEHC 2285 (KLR)
- Parties
- Applicant: Otieno, Ragot & Company Advocates; Respondent: Kenindia Assurance Company Ltd.
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Cause 238 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Reference Against Taxation Decision
- Outcome
- reference dismissed with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Time Limits for Reference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno, Ragot & Company Advocates
Applicant
Kenindia Assurance Company Ltd.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Reference Against Taxation Decision
Legal Issues
- 1 Whether the reference against the taxing officer's decision was filed within the prescribed time limit.
- 2 Whether failure to seek leave to enlarge time for filing the reference renders the application incompetent.
- 3 Whether Article 159(2)(d) of the Constitution can cure the defect of late filing.
Ratio Decidendi
The court held that the Advocate/Applicant failed to file the reference within the 14-day period stipulated under Rule 11(2) of the Advocates Remuneration Order after receiving the taxing officer's reasons. No leave to enlarge time was sought. The court rejected the argument that the delay was a mere technicality curable under Article 159(2)(d) of the Constitution, emphasizing that the timelines are mandatory and non-compliance renders the reference incompetent. Consequently, the reference was dismissed with costs to the Respondent.
Court Disposition
reference dismissed with costs to the respondent
Orders
- The reference is dismissed for being filed out of time without leave.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL CAUSE NO. 238 OF 2013
IN THE MATTER OF TAXATION OF ADVOCATE – CLIENT BILL OF COSTS
BETWEEN
OTIENO, RAGOT & COMPANY ADVOCATES ….............................. APPLICANT
AND
KENINDIA ASSURANCE COMPANY LTD. …................................ RESPONDENT
Arising From
Nyando SRMCC NO. 181 OF 2005
JOSEPH OGINGA …................................................................................ PLAINTIFF
VERSUS
CHEMELIL SUGAR COMPANY LIMITED …..................................... DEFENDANT
RULING
This is a ruling on the Advocate/Applicant's reference by way of Chamber Summons dated 11th August 2014. By that reference the Advocate/Applicant seeks to quash the taxing officer's decision on items 5 and 10 and the item on interest in the Bill of Costs dated 7th October 2013.
The application was vehemently opposed principally on the ground that the same was filed out of time without leave.
Both Advocates duly filed their submissions which I have now had ample opportunity to peruse. I must agree with the Advocate for the Client/Respondent that this reference is incompetent. Rule 11(1) of the Advocates Remuneration Order gives a party aggrieved by the decision of the taxing officer 14 days within which to file a
Notice of Objection in writing. Rule 11(2) requires the taxing officer to furnish those reasons forthwith and once the aggrieved party receives them they have fourteen days to file a reference.
In this case the decision of the taxing officer was delivered on 26th June 2014. On 3rd July 2014 the Advocate/Applicant filed a Notice of Objection in writing and on 10th July 2014 the taxing officer replied stating that the reasons were contained in the ruling and they are. However it was not until 5th September 2014 that this reference was filed. This was way beyond the 14 days provided in paragraph 11(2) yet leave to enlarge time was not sought. I do not agree that this is a technicality that can be wished away under Article 159(2)(d) of the Constitution and accordingly this reference is dismissed with costs to the Client/Respondent.
Signed, dated and delivered at Kisumu this 24th day of September 2015
E. N. MAINA
JUDGE
In presence of:-
Mr. Ragot for the Applicant
Miss Aron for the Respondent
CC: Moses Okumu