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By Notice of Motion dated 10 th March 2025 presented under Order 42 Rule 6, Order 51 rules 1and 3 of the Civil procedure Rules2010 and Section 3 and 3A of the Civil procedure Act, the applicants seek the following orders-
Spent
THAT Honourable Court be pleased to order stay of execution of the Ruling and Certificate of taxation granted by this Honourable Court on the 31 st January 2025 against the respondents/ clients and all subsequent orders or alternatively the status quo be maintained pending hearing and determination of this application.
THAT pending the hearing and determination of the application, this Honourable Court be pleased to review and or set aside its ruling for the advocate/ client bill of costs dated 22 nd April 2024.
THAT costs be provided for.
The Application is said to be based on the grounds on the face of the application and is supported by the affidavit of FLORENCE AUMA NDERITO sworn on 10 th March 2025. She avers that the taxing master failed to consider that a sum of Kshs 250, 000 had been paid and this should have been set off against the taxed bill of Kshs 519,714
In response the respondent/ advocate has filed sworn a replying affidavit on 28 th September 2025 in which he avers that the application is incurably defective for failing to comply with the mandatory provisions of rule 11 (1) and (2) of the Advocates ( Remuneration) Order. It is submitted that the application to review/ and or set aside the decision of the taxing master is unheard of at law and therefore cannot issue.
In any event the applicant has not satisfied the conditions for a stay of execution.
ANALYSIS AND DETERMINATION
Having regard to the pleadings the issue for determination is
whether the Notice of Motion has merit and the Court should review and/ or set aside the decision of the taxing master dated 31 st January 2025
Who should pay costs
It is not contested that the application is presented under Order 42 (6) of the Civil procedure rules, Order 51 rules 1 and 3 of the Civil procedure Rules 2010 and Section 3 and 3A of the Civil procedure Rules. The procedure for challenging a decision of the taxing master is provided for under rule 11(1) and 2 of the Advocates (Remuneration) Order which provides-
11. 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.
The issue therefore is whether the failure to present the reference under the correct provisions of the law is fatal to the application. A similar question arose in Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co Advocates v Export Hydro Pump & Services (Africa) Limited [2018] KEHC 6246 (KLR) , where as in the current case, the client failed to present their challenge under the provisions of the Advocates Remuneration Order.
In dismissing the Notice of Motion, the Court observed that the provisions of Order 11 of the Advocates (Remuneration) order are mandatory and pronounced as follows-
The supreme court in a case pertinent to what is before court had an occasion to consider the importance of adherence to the laid down procedure in approaching a court of law. This was in an appeal of an election petition that is the case of Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others [2016]eKLR where the court stated thus:
This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.
Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2)(d) of the constitution, which proclaims that, “...courts and tribunals shall be guided by...[the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.
The importance of following procedure of paragraph 11 of the order, was underscored by Justice R. E Aburili in the case Vishish Talwar v Anthony Thuo Kanai T/a A. Thuo Kanai Advocates [2014] eKLR where the learned judge stated:
The learned judge referring to a decision in the Court of Appeal in Machira & Co. Advocates – vs- Arthur K. Magugu & Another CA 199/2002[2012]eKLR stated that:
Rule 11 thereof provides for ventilation of grievances from such decisions through references to a judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used. Appeals require the typing of proceedings, compiling of records of appeal and hearing of the same in open court. Reviews, however, would require provisions akin to those in Section 80 of the Civil Procedure Act of discovery of new and important matters, errors on the face of the record and so on. In our view the Rules Committee intended to avoid all that and provide for a simple and expeditious mode of dealing with decisions on Advocate’s bill of costs through references under Rule 11 to a Judge in chambers.
For the foregoing reasons I find that the current application is incurably defective and proceed to strike it out with costs to the advocate assessed at Kshs 25000
It is so ordered
SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 14 th DAY OF NOVEMBER, 2025.
'
By Notice of Motion dated 10 th March 2025 presented under Order 42 Rule 6, Order 51 rules 1and 3 of the Civil procedure Rules2010 and Section 3 and 3A of the Civil procedure Act, the applicants seek the following orders-
Spent
THAT Honourable Court be pleased to order stay of execution of the Ruling and Certificate of taxation granted by this Honourable Court on the 31 st January 2025 against the respondents/ clients and all subsequent orders or alternatively the status quo be maintained pending hearing and determination of this application.
THAT pending the hearing and determination of the application, this Honourable Court be pleased to review and or set aside its ruling for the advocate/ client bill of costs dated 22 nd April 2024.
THAT costs be provided for.
The Application is said to be based on the grounds on the face of the application and is supported by the affidavit of FLORENCE AUMA NDERITO sworn on 10 th March 2025. She avers that the taxing master failed to consider that a sum of Kshs 250, 000 had been paid and this should have been set off against the taxed bill of Kshs 519,714
In response the respondent/ advocate has filed sworn a replying affidavit on 28 th September 2025 in which he avers that the application is incurably defective for failing to comply with the mandatory provisions of rule 11 (1) and (2) of the Advocates ( Remuneration) Order. It is submitted that the application to review/ and or set aside the decision of the taxing master is unheard of at law and therefore cannot issue.
In any event the applicant has not satisfied the conditions for a stay of execution.
ANALYSIS AND DETERMINATION
Having regard to the pleadings the issue for determination is
whether the Notice of Motion has merit and the Court should review and/ or set aside the decision of the taxing master dated 31 st January 2025
Who should pay costs
It is not contested that the application is presented under Order 42 (6) of the Civil procedure rules, Order 51 rules 1 and 3 of the Civil procedure Rules 2010 and Section 3 and 3A of the Civil procedure Rules. The procedure for challenging a decision of the taxing master is provided for under rule 11(1) and 2 of the Advocates (Remuneration) Order which provides-
11. 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.
The issue therefore is whether the failure to present the reference under the correct provisions of the law is fatal to the application. A similar question arose in Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co Advocates v Export Hydro Pump & Services (Africa) Limited [2018] KEHC 6246 (KLR) , where as in the current case, the client failed to present their challenge under the provisions of the Advocates Remuneration Order.
In dismissing the Notice of Motion, the Court observed that the provisions of Order 11 of the Advocates (Remuneration) order are mandatory and pronounced as follows-
The supreme court in a case pertinent to what is before court had an occasion to consider the importance of adherence to the laid down procedure in approaching a court of law. This was in an appeal of an election petition that is the case of Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others [2016]eKLR where the court stated thus:
This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.
Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2)(d) of the constitution, which proclaims that, “...courts and tribunals shall be guided by...[the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.
The importance of following procedure of paragraph 11 of the order, was underscored by Justice R. E Aburili in the case Vishish Talwar v Anthony Thuo Kanai T/a A. Thuo Kanai Advocates [2014] eKLR where the learned judge stated:
The learned judge referring to a decision in the Court of Appeal in Machira & Co. Advocates – vs- Arthur K. Magugu & Another CA 199/2002[2012]eKLR stated that:
Rule 11 thereof provides for ventilation of grievances from such decisions through references to a judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used. Appeals require the typing of proceedings, compiling of records of appeal and hearing of the same in open court. Reviews, however, would require provisions akin to those in Section 80 of the Civil Procedure Act of discovery of new and important matters, errors on the face of the record and so on. In our view the Rules Committee intended to avoid all that and provide for a simple and expeditious mode of dealing with decisions on Advocate’s bill of costs through references under Rule 11 to a Judge in chambers.
For the foregoing reasons I find that the current application is incurably defective and proceed to strike it out with costs to the advocate assessed at Kshs 25000
It is so ordered
SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 14 th DAY OF NOVEMBER, 2025.
'