[2019] KEHC 2686 (KLR)
The court found that the applicant failed to comply with the mandatory procedural requirements under Paragraph 11(1) and (2) of the Advocates (Remuneration) Order. Specifically, the applicant did not give timely notice of objection to the Taxing Master nor request reasons for the decision within the stipulated...
Source-derived case information.
- Citation
- [2019] KEHC 2686 (KLR)
- Parties
- Plaintiff: Patrick Kimathi Muchena t/a Arimi Kimathi & Co. Advocates; Defendant: Evans Ithira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 382 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Chamber Summons
- Outcome
- application struck out; preliminary objection upheld
- Judges
- MM Kasango
- Legal Topics
- Taxation of Costs, Advocates Remuneration Order, Preliminary Objection, Out of Time Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kimathi Muchena t/a Arimi Kimathi & Co. Advocates
Plaintiff
Evans Ithira
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Chamber Summons
Legal Issues
- 1 Whether the Chamber Summons application was filed within the statutory timelines under the Advocates (Remuneration) Order.
- 2 Whether the applicant gave proper notice of objection to the Taxing Master as required by law.
- 3 Whether the reference is competent in the absence of compliance with procedural requirements.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory procedural requirements under Paragraph 11(1) and (2) of the Advocates (Remuneration) Order. Specifically, the applicant did not give timely notice of objection to the Taxing Master nor request reasons for the decision within the stipulated period. The only letter on record was filed well outside the prescribed timeline, and no evidence was provided to support the applicant's claim of earlier compliance. The court held that, in the absence of adherence to these strict timelines and without leave of court to file out of time, the reference was incompetent. Consequently, the Chamber Summons was struck out and the...
Court Disposition
application struck out; preliminary objection upheld
Orders
- The Chamber Summons dated 23rd May 2019 is struck out with costs.
- The Preliminary Objection is successful and the costs thereof shall be paid by Patrick Kimathi Muchena t/a Arimi Kimathi & Company Advocates.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
MISCELLANEOUS CASE NO. 382 OF 2018
PATRICK KIMATHI MUCHENA
T/A ARIMI KIMATHI & CO. ADVOCATES ................PLAINTIFF
-VERSUS-
EVANS ITHIRA ............................................................ DEFENDANT
R U L I N G
1. This Ruling is over the Chamber Summons dated 23rd May 2019 and a Preliminary Objection dated 3rd July 2019. From my consideration of both of those two leads me to find that if the Preliminary Objection succeeds the Chambers Summons will fail. See the case N. W. AMOLO T/A AMOLO KIBANYA T/A AMOLO KIBANYA & CO. ADVOCATES V SAMSON KEENGU NYAMWEYA [2016] eKLR:
“This Court is divested with jurisdiction to determine the merits of a reference that is filed outside the statutory stipulated period. And without jurisdiction, the Court can do no more than down its tools.”
2. The Chamber Summon is a reference of a taxation by the Taxing Master. The Taxing Master delivered her Ruling on 25th January 2019. The Chamber Summons as previously stated is dated 23rd May 2019 and was filed in Court on 24th May 2019.
3. The Preliminary Objection objects to that Chamber Summons on the following grounds:
a.That the Chamber Summons application dated 23rd May, 2019 contravenes Rule 11 (2) of the Advocates Remuneration Order as it is filed out of time without leave of Court hence it cannot be entertained.
b.That the Chamber Summons application dated 23rd May, 2019 contravenes Rule 11(1) of the Advocates Remuneration Order as no Notice of Objection to the decision of Taxing Master was issued and is therefore incompetent, misconceived and misplaced.
c.That the application is incurably defective and ought to be dismissed with costs.
4. Paragraph 11 (1) and 11(2) of the Advocates (Remuneration) Order is in the following terms:
“(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.”
5. As stated before the Taxing Master delivered her Ruling on 25 January 2019. The Applicant did not request the Taxing Master to proffer her reasons for her decision, as set out in paragraph 11(2) neither did he give notice of his objection as per paragraph 11(1). It is important to state that the Applicant’s Bill of Cost was dismissed by the Taxing Master and it follows that paragraph 11(1) is not applicable in this case.
6. The Applicant did not file an affidavit in response to the Preliminary Objection. The Applicant only stated in his written submissions that he submitted a letter on 31st January 2019 to the Taxing Master. That letter is not before Court and the Court has therefore no way of confirming its existence. What however is on the Court record is a letter written by the Applicant addressed the Deputy Registrar of this Court and dated 19th April 2019 but filed in Court on 24th April 2019. It does not take much imagination for one to note that that letter was beyond the period provided in Paragraph 11(2). It is clear to me that the Applicant has failed to prove to this Court that he abided by the strict timelines provided in paragraph 11 (1) and (2). The holding in the case GOVERNORS BALLOON SAFARIS LIMITED V SKYSHIP COMPANY LIMITED & ANOTHER [2015]eKLR rings trueas follows:
“The Applicant did not annex a certified copy of the said letter even after it had decided it was important to annex a copy. The Court is left with no choice than to say that none was given as required. Even if it had been filed, the Applicant did not file the Reference until 48 days after the delivery of the taxation Ruling. On that score, the Reference is fatally assailed.”
7. The Applicant failed to seek leave to file the reference out of time and the Court can only say to him this, his reference is incompetent for failing to abide by the timelines of the Advocates (Remuneration) Order paragraph 11(1) and (2). Being incompetent there can but only be on result. It fails.
CONCLUSION
8. The following are the orders of the Court:
a. The Chamber Summons dated 23rd May 2019 is struck out with costs.
b. The Preliminary Objection is successful and the costs thereof shall be paid by the Patrick Kimathi Muchena t/a Arimi Kimathi & Company Advocates.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI this6thday of NOVEMBER,2019.
MARY KASANGO
JUDGE
Ruling ReadandDeliveredinOpen Courtin the presence of:
Sophie..................................... COURT ASSISTANT
................................................ FOR THE PLAINTIFF
................................................ FOR THE DEFENDANT