https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2990

Lalji v Ochoki & Ochoki Associates Advocates (Environment and Land Case Civil Suit E153 of 2025) [2026] KEELC 2990 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2990 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case Civil Suit E153 of 2025 MN Kullow, J May 14, 2026 Between Patel Ravji Lalji Plaintiff and Ochoki & Ochoki Associates Advocates Defendant Ruling Introduction 1.The matter is coming up for determination on the respondent’s notice of preliminary objection dated 5th November 2025 on the following grounds;a.That the Chamber Summons dated 27th May, 2025 offends paragraphs 11(1) & 12 of the Advocates Remuneration Order since the said Chamber Summons was filed out of time.b.That leave for extension of time should have been sought on a Notice of Motion and not a Chamber Summon which is yet to be filed vide paragraph 20 of the Supporting Affidavit.c.That there are no justifiable reasons given for the delay hence further offends Paragraph 11(1) of the Advocates Remuneration Order. 4.d.That there is no Notice of Objection in writing done to the taxing master detailing the specific items the Applicant disagrees with as such the Chamber Summons further offends paragraph 11(1) of the Advocates Remuneration Order.e.That the Chamber Summons dated 27 May, 2025 is res judicata as all the issues on it were raised before the taxing master.f.That the Applicant is blaming his former advocate, that is not an excuse. 2.The court directed for the notice of preliminary objection be dispensed off by written submissions and as at the time of drafting this ruling, only the respondent had submitted. Respondents’ Submissions 3.The respondent submitted that the respondent in the bill of costs had 30 days to stay the execution of the ruling delivered on 19th March 2025 which period had expired and no reason had been given as to why he failed to file the reference within 14 days statutory period. 4.That further the applicant sought to stay the decision of a taxing master without providing any viable reasons as to why the said decision would be stayed Analysis and Determination 5.Having considered the Notice of Preliminary objection and the submissions herein the only issue for determination isWhether the Notice of Preliminary Objection dated 5th November 2025 is merited.The notice of preliminary objection dated 5th November 2025 is founded on the notion that Chamber Summons dated 27th May 2025 offends paragraph 11(1) and 12 of the Advocates Remuneration Order since the said Chamber Summons was filed out of time,that no leave of extension of time has been sought on the said Chamber Summons dated 27th May 2025, that that there was no justifiable given for the delay and there is no Notice of Objection in writing done to the taxing master detailing the specific items that Applicant disagrees with and as such the Chamber Summons further offends paragraph 11(1) of the Advocates Remuneration Order.Order 11 of the Advocates Remuneration Order lists the procedure for an aggrieved party to object to a taxing officer’s decision on the taxation of a bill of costs. It reads11.Objection to decision on taxation and appeal to Court of Appeala.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.b.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.c.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.d.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. 6.Order 11(1) must be read alongside Order 11(2) so as understand why under Order (1) it is optional for the party objecting to write to the taxing master indicating the items of taxation to which he objects. Order 11(2) places an obligation on the taxing master to therefore record and forward to the objector the reasons for his decision on those items. It follows therefore that the notice is in instances where that the party objecting requires reasons or where the taxing officer has not provided the reasons. Where, as in this case, the taxing master has provided reasons in the decision Order 11(1) is rendered unnecessary and the party is at liberty within 14 days of the decision to apply to a judge by chamber summons, setting out the grounds of his objection. The preliminary objection will therefore fail on that limb.On the issue of failing the reference outside the 14 day’s statutory notice, having submitted that the applicant was at liberty to file the reference within the 14 days and considering the ruling by the Taxing master listed the reasons for the taxation of the bill of costs,it is my view that the taxing officer addressed the reasons, in strict compliance with Order 11 (2), on how he arrived at his Ruling. In Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2) [2006] 1 EA 5 Ochieng, J, similarly, held as follows:"Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling...Therefore the reference having been filed way out of the period prescribed should have been dismissed but having been given due consideration in substance, the same dismissed.”In the circumstances, taking into consideration the authority cited above, I find that the reasons for the Taxing Master’s decision were contained in the decision. It follows that the applicant herein had no reason to delay the filing of this Reference and more so, in filing the same after the elapse of more than 14 days after the delivery of the same, contrary to the stipulations in Rule 11 of the Advocates Remuneration Order.However, it is contended that the delay was caused not by the Client/Applicant but by the failure of the client’s then advocate on record to file the reference in good time despite several reminders from the client/Applicant. I have perused the pleadings and do note that the applicant in his supporting affidavit to the chamber summons application, has attached a series of emails where he was following up on their case. On the date of the said ruling that is 19th March 2025 after being made aware that the ruling had been delivered, he instructed counsel to immediately file a reference. He follows up with emails on the 11th April, 17th April and 9th May 2025 confirming whether the reference had been filed, which emails do not elicit any feedback from counsel. He further goes to ask why some crucial evidence was not attached in the response to the bill of costs corroborating the averments that the taxing master in her ruling did not take into account the evidence due to the mistake of counsel.I find that the Client/Applicant has clearly demonstrated that failure to file the Chamber Summons within the prescribed period was unpremeditated, excusable, and beyond the Applicant’s control. The application was subsequently presented to the court immediately the applicant had new counsel on record. The Applicant has given a good and substantial reason for the delay. This shows a good cause for the delay in filing reference.The delay cannot at any rate be contributed to the Client/Applicant and even if any was to be apportioned to the Client/Applicant’s Counsel, the law loudly speaks on that matter, that an error of an Advocate should not be visited on the client as was enunciated in the case of Lucy Bosire v Kehancha Dv. Land Dispute Tribunal & 2 others (2013) eKLR that: -“It is true that where the justice of the case mandates, mistakes of advocates even if blunders should not be visited on the clients when the situation can be remedied by costs. It must be recognised that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined in its merits." Final Disposition 7.In view of the aforesaid, I make the following orders;a.The Advocate/Respondent Preliminary Objection cannot stand and is hereby dismissed.b.Costs shall be in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Mutaba for Otieno for the Applicant.Mr. Sausi for the Respondent.Philomena W. - Court Assistant.