This ruling determines a preliminary objection against a chamber summons dated 19 February 2025, in which the the applicant, Koira Limited, has referred the taxation by the taxing officer of the applicant’s party and party bill of costs dated 14 August 2024. The reference is expressed to be brought under Paragraph 11 of the Advocates (Remuneration) Order and section 3A of the Civil Procedure Act, cap. 21. It challenges the ruling of the taxing officer delivered on 14 August 2024, according to which the bill was taxed at Kshs. 1,211,725.00. The applicant seeks to have that taxation set aside and the bill remitted for taxation afresh before another taxing officer, or, in the alternative, re-taxed by this court.
2. In response to the reference, the 1st respondent comprising the administrators of the estate of Sir Ali bin Salim El Busaidy, raised a Notice of Preliminary Objection dated 17 March 2025, contending that the reference is incompetent and ought to be struck out in limine. It is that objection which is the subject of this determination. Both the applicant and the 1st respondent canvassed the objection by written submissions.
The preliminary objection
3. The objection is on the grounds that; first, that the reference was filed outside the fourteen (14) day period prescribed by paragraph 11(1) and (2) of the Advocates (Remuneration) Order, and is, therefore, fatally defective; secondly, that the court lacks jurisdiction to entertain the refence, the reference having been lodged some six months after the taxing officer’s decision of 14 August 2024 and without leave; thirdly, and in what appears to a contradiction, that the reference is premature, having been filed before the taxing officer furnished his reasons, so that compliance with paragraph 11(2), said to be a condition precedent, is wanting; and fourthly, that the defect cannot be cured by equity. The 1st respondent relies, among others, on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR.
4. The starting point in determination of the preliminary objection is the determination of what a preliminary objection entails. The locus classicus is Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law, JA held that:
“A “preliminary objection” consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
5. In the same case, Sir Charles Newbold, P added that a preliminary objection is in the nature of a demurrer in that it raises a pure point of law argued on the assumption that all the facts pleaded are correct, and it cannot be raised where any fact has to be ascertained, or where what is sought is the exercise of judicial discretion. A point that depends for its success on the resolution of contested facts is, therefore, not a proper preliminary objection.
6. Measured against that standard, the objection is not, strictly, a pure point of law. Whether the reference is out of time, and whether it is premature, both turn on questions of fact that are in controversy: when, if at all, the taxing officer’s reasons were furnished; whether the applicant requested those reasons and within what time; and whether the reasons were withheld notwithstanding that request. On the applicant’s own material, it gave notice of objection and requested reasons by a letter dated 21 August 2024, followed it with a reminder dated 22 October 2024, and the reasons were never supplied, the taxing officer having since been transferred from the station. These are not agreed facts; they are the very matters the objection glosses over. On that ground alone, applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the objection is misconceived.
7. Even then, the preliminary objection fails on the construction of paragraph 11 of the Advocates (Remuneration) Order itself. The scheme of the rule is sequential. Under Rule 11(1), a party dissatisfied with the decision of a taxing officer may, within fourteen days of the decision, give notice in writing of the items objected to. Under Rule 11(2), the taxing officer shall then record and forward to the objector the reasons for the decision on those items, and the objector may thereafter, “within fourteen days from the receipt of the reasons”, apply to a judge by chamber summons. The fourteen-day period for filing the reference thus runs not from the date of the ruling, but from the date of receipt of the taxing officer’s reasons.
8. That distinction is decisive here. The applicant gave its notice of objection on 21 August 2024, well within fourteen days of the decision of 14 August 2024. The taxing officer never rendered the reasons. It follows that the fourteen-day period under Rule 11(2) never began to run, and the reference cannot be said to be out of time. The 1st respondent’s argument, that the reference is “six months and six days” late, is mistaken, because it measures time from the date of the ruling rather than from the receipt of the reasons, which is the date the rule fixes.
9. It follows too that the authorities on which the 1st respondent relies do not assist it on these facts. Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR establishes that jurisdiction flows from the Constitution or statute and cannot be assumed where it does not exist; but here the statute confers jurisdiction, and the time limited by it has not run out. Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR speaks against a party who has slept on his rights; the applicant here did not sleep, it objected within time and pressed, more than once, for the reasons that would set the reference period running.
10. The 1st respondent’s remaining complaint, that the reference is premature because it was filed before the reasons issued, cannot avail it either, and for a reason that goes to fairness. It is true that a reference is ordinarily argued upon the taxing officer’s reasons, since the court’s task is to examine whether the taxing officer erred in principle in the exercise of discretion. But where, as here, the reasons are absent solely because the taxing officer failed to render them despite a timely request, that failure cannot be visited upon the innocent litigant so as to shut it out altogether. To strike out the reference in such circumstances would be to deny the applicant a hearing on account of the default of the court’s own officer, contrary to Article 50(1) of the Constitution of Kenya, 2010 and to the principle, affirmed in David Onyango Oloo v Attorney General [1987] KECA 56 KLR, that a party is not to be condemned unheard. Article 159(2)(d) of the Constitution likewise enjoins the court not to defeat substantive justice on such a technicality.
11. I would add that the ground that the impugned ruling was not annexed is, with respect, not borne out by the record; the ruling of 14 August 2024 is exhibited to the supporting affidavit. What is absent from the record are the taxing officer’s reasons, and their absence is, as I have found, the taxing officer’s omission and not the applicant’s.
12. For the reasons I have given, I do not find any merit in the preliminary objection; it is dismissed and costs will abide the outcome of the reference. It is so ordered.
2. In response to the reference, the 1st respondent comprising the administrators of the estate of Sir Ali bin Salim El Busaidy, raised a Notice of Preliminary Objection dated 17 March 2025, contending that the reference is incompetent and ought to be struck out in limine. It is that objection which is the subject of this determination. Both the applicant and the 1st respondent canvassed the objection by written submissions.
The preliminary objection
3. The objection is on the grounds that; first, that the reference was filed outside the fourteen (14) day period prescribed by paragraph 11(1) and (2) of the Advocates (Remuneration) Order, and is, therefore, fatally defective; secondly, that the court lacks jurisdiction to entertain the refence, the reference having been lodged some six months after the taxing officer’s decision of 14 August 2024 and without leave; thirdly, and in what appears to a contradiction, that the reference is premature, having been filed before the taxing officer furnished his reasons, so that compliance with paragraph 11(2), said to be a condition precedent, is wanting; and fourthly, that the defect cannot be cured by equity. The 1st respondent relies, among others, on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR.
4. The starting point in determination of the preliminary objection is the determination of what a preliminary objection entails. The locus classicus is Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law, JA held that:
“A “preliminary objection” consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
5. In the same case, Sir Charles Newbold, P added that a preliminary objection is in the nature of a demurrer in that it raises a pure point of law argued on the assumption that all the facts pleaded are correct, and it cannot be raised where any fact has to be ascertained, or where what is sought is the exercise of judicial discretion. A point that depends for its success on the resolution of contested facts is, therefore, not a proper preliminary objection.
6. Measured against that standard, the objection is not, strictly, a pure point of law. Whether the reference is out of time, and whether it is premature, both turn on questions of fact that are in controversy: when, if at all, the taxing officer’s reasons were furnished; whether the applicant requested those reasons and within what time; and whether the reasons were withheld notwithstanding that request. On the applicant’s own material, it gave notice of objection and requested reasons by a letter dated 21 August 2024, followed it with a reminder dated 22 October 2024, and the reasons were never supplied, the taxing officer having since been transferred from the station. These are not agreed facts; they are the very matters the objection glosses over. On that ground alone, applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the objection is misconceived.
7. Even then, the preliminary objection fails on the construction of paragraph 11 of the Advocates (Remuneration) Order itself. The scheme of the rule is sequential. Under Rule 11(1), a party dissatisfied with the decision of a taxing officer may, within fourteen days of the decision, give notice in writing of the items objected to. Under Rule 11(2), the taxing officer shall then record and forward to the objector the reasons for the decision on those items, and the objector may thereafter, “within fourteen days from the receipt of the reasons”, apply to a judge by chamber summons. The fourteen-day period for filing the reference thus runs not from the date of the ruling, but from the date of receipt of the taxing officer’s reasons.
8. That distinction is decisive here. The applicant gave its notice of objection on 21 August 2024, well within fourteen days of the decision of 14 August 2024. The taxing officer never rendered the reasons. It follows that the fourteen-day period under Rule 11(2) never began to run, and the reference cannot be said to be out of time. The 1st respondent’s argument, that the reference is “six months and six days” late, is mistaken, because it measures time from the date of the ruling rather than from the receipt of the reasons, which is the date the rule fixes.
9. It follows too that the authorities on which the 1st respondent relies do not assist it on these facts. Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR establishes that jurisdiction flows from the Constitution or statute and cannot be assumed where it does not exist; but here the statute confers jurisdiction, and the time limited by it has not run out. Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR speaks against a party who has slept on his rights; the applicant here did not sleep, it objected within time and pressed, more than once, for the reasons that would set the reference period running.
10. The 1st respondent’s remaining complaint, that the reference is premature because it was filed before the reasons issued, cannot avail it either, and for a reason that goes to fairness. It is true that a reference is ordinarily argued upon the taxing officer’s reasons, since the court’s task is to examine whether the taxing officer erred in principle in the exercise of discretion. But where, as here, the reasons are absent solely because the taxing officer failed to render them despite a timely request, that failure cannot be visited upon the innocent litigant so as to shut it out altogether. To strike out the reference in such circumstances would be to deny the applicant a hearing on account of the default of the court’s own officer, contrary to Article 50(1) of the Constitution of Kenya, 2010 and to the principle, affirmed in David Onyango Oloo v Attorney General [1987] KECA 56 KLR, that a party is not to be condemned unheard. Article 159(2)(d) of the Constitution likewise enjoins the court not to defeat substantive justice on such a technicality.
11. I would add that the ground that the impugned ruling was not annexed is, with respect, not borne out by the record; the ruling of 14 August 2024 is exhibited to the supporting affidavit. What is absent from the record are the taxing officer’s reasons, and their absence is, as I have found, the taxing officer’s omission and not the applicant’s.
12. For the reasons I have given, I do not find any merit in the preliminary objection; it is dismissed and costs will abide the outcome of the reference. It is so ordered.