1. Before me is a Chamber Summons application dated 1st February 2024, filed by the client pursuant to the provisions of Rule 11(2) of the Advocates Remuneration Order, Sections 1, 1A, 3A & 75 of the Civil Procedure Act, Article 159(d) (sic) of the Constitution of Kenya, 2010, and all other enabling provisions of the law. The client company seeks orders inter alia, for leave to file a Reference out of time or for the Reference filed late to be admitted and determined, for stay of execution, and further proceedings of the Deputy Registrar’s ruling delivered on 31st October 2023, the subsequent certificate of costs dated 28th November 2023. The client company also seeks an order to set aside the Deputy Registrar’s ruling and for the striking out the Advocate-Client bill of costs dated 16th February 2022, or alternatively, for this Court to remit it for proper taxation with guidance on the factors and parameters for fair taxation.
2. The application is predicated on the grounds on the face of the Summons, and it is supported by an affidavit sworn on the same day by Mohan Chal, the client’s Managing Director. The client company’s case is that a dispute arose between it and the Kenya Revenue Authority (hereinafter referred to as the KRA) sometime in the year 2019 over taxes for the years 2015 to 2017, wherein KRA had assessed additional taxes of Kshs.24,495,295.19 in March 2019, which the company contested. Mr. Chal averred that after filing an objection and thereafter an appeal at the Tax Appeals Tribunal being Tax Appeal No. E148 of 2021, the Tax Appeals Tribunal delivered its judgment which the company was still aggrieved with, thus it instructed its Auditors to appeal against it at the High Court.
3. Mr. Chal contended that the company never instructed the Advocate to represent it at the Tribunal and/or at the High Court, as it had engaged Mr. Joseph Ywaya of Ndigro and Associates for purposes of representation. Mr. Chal asserted that the Advocates herein may have been engaged by Mr. Ywaya unilaterally, and the Advocate lodged an appeal against the decision of the Tax Appeals Tribunal without authorization since the ADR process that resolved the dispute between the client and KRA was handled solely by Ndigro and Associates.
4. Mr. Chal contended that the Advocate – Client bill of costs against the company is unjustified and inflated. He stated that in any event, the said bill was processed ex parte, without the company’s involvement or knowledge, and the ruling was made without notice to the client company. He indicated that it is for the said reasons that the company seeks leave of this Court to file a Reference out of time to challenge the Deputy Registrar’s ruling and to have the Advocate’s bill of costs set aside or remitted for proper taxation. He argued that the fees charged are disproportionate and unjustifiable, as no proper instructions were given.
5. In opposition to the application, the Advocate filed Grounds of Opposition dated 4th March 2024 raising the following grounds -
i) That the application is frivolous, vexatious and calculated to waste the time of the Honorable Court;
ii) That at all times the applicant was served and a return of service was filed and uploaded on the CTS (Court Tracking System);
iii) That the applicant confirms receipt of Notice of Election and Notice of Taxation but denies receipt of all other Court processes yet the same were served through the same email;
iv) That the Advocate received instructions through the applicant’s Agents who act in favour of the applicant and the orders obtained continue to be enjoyed by the applicant;
v) That the Advocate already filed an application under Section 52 of the Advocates Act seeking to make the taxed costs an order of the Honourable Court and the applicant’s application is an attempt to deny the Advocates of their rightful hard-earned money;
vi) That further, the applicant’s application has been lodged out of time, contrary to Rule 11 of the Advocates (Remuneration) Order;
vii) That the application is an afterthought, the same having been filed only after the applicant was made aware of the Certificate of Taxation; and
viii) That it is from the foregoing grounds that the applicant’s application dated 1st February 2024 should be dismissed with costs.
6. The Advocate also filed a replying affidavit sworn on 30th April 2024 by Alex Wang’oma Mola, an Advocate of the High Court of Kenya and learned Counsel for the Advocate. He averred that the instant application is incompetent for want of compliance with Rule 11 of the Advocates Remuneration Order. He further averred that the client company has not made out a case to warrant being granted an order for leave to file a Reference out of time. The Advocate contended that it had instructions from the client company to lodge an appeal against the decision of the Tax Appeals Tribunal to the High Court, and to represent it in the said appeal. Mr. Mola asserted that the client company was duly served with all the requisite notices and documents for the taxation proceedings in this matter.
7. It was stated by Counsel that its firm of Advocates was engaged on 4th July 2021, by Auditor Joseph Yaywa, under instructions from the client company and Butt & Associates, to file an appeal against the Tax Appeals Tribunal’s decision in TAT No. 399 of 2019. He deposed that since Auditors cannot represent clients in High Court Appeals, the Advocate’s firm was tasked with filing a Notice of Appeal and later preparing and lodging the Appeal accompanied with an application seeking orders for stay of execution, which was done within the required timelines. Counsel further stated that he negotiated with the KRA on security for costs, proposing Kshs.1,000,000/= after consulting the client company, though a consent order dated 20th August 2021, set the amount at Kshs.2,000,000/=. Mr. Mola averred that throughout the process, the client and Mr. Yaywa were kept fully informed of developments and the progress of the case, and at no point did the client company object.
8. Mr. Mola referred to an email sent to the client's email address on 28th September 2021, providing updates and requesting payment of a fee note dated 13th August 2021, for Kshs.1,747,498.00, which email elicited no response from the client company. He contended that despite receipt of the said email, the client did not object to the Advocate’s involvement, but instead, together with Mr. Yaywa, it engaged the Advocates regarding fees, proposing terms that were rejected, thereby confirming that the client company acknowledged their services. Counsel argued that instructions can be inferred from conduct, and the client was aware of, and benefited from their representation. He averred that he actively participated in the ADR process which was as a result of the Appeal filed by them against the decision of the Tax Appeals Tribunal, representing the client company’s interests, and he appeared in Court to adopt the consent.
9. Counsel for the Advocate contended that taxation notices and related documents were served, and the Court determined the bill of costs as undefended after the client failed to appear. He emphasized that the Deputy Registrar’s ruling on costs was informed and based on substantiated work, including filing the Appeal, securing a stay, lifting Agency Notices, and successfully negotiating the ADR process. He argued that the client’s failure to challenge the bill of costs during taxation barred it from questioning the jurisdiction of the Taxing Officer. He contended that the client deliberately ignored notices, failed to defend the bill of costs, and is guilty of laches, which makes its application for leave unfounded.
10. The application herein was canvassed by way of written submission. The client’s submissions were filed on 26th March 2024 by the law firm of M/s Sheth & Wathigo Advocates, whereas the Advocate’s submissions were filed by the law firm of Mola Kimosop Advocates on 25th July 2024.
11. Mr. Kisilah, learned Counsel for the client company referred to Rule 11 of the Advocates Remuneration Order and submitted that this Court has the discretion to extend time within which a dissatisfied party can file a Reference against the decision of the Deputy Registrar with respect to tax matters. He further submitted that though the Reference herein was filed out of time, the delay was occasioned by the fact that the client company was neither served nor notified of the date for the ruling of the Advocate’s bill of costs, thus it did not know when it came up. He relied on the case of Makhecha & Gitonga Advocates v The Standard Group Plc [2022] eKLR, and urged this Court to find that the delay in filing the Reference herein is justifiable. Counsel urged this Court to exercise its discretion in favour of the client company and enlarge time for the filing of the Reference.
12. Counsel argued that there was no express authority given to Mr. Joseph Yaywa to instruct the Advocate on behalf of the client company, rendering the alleged instructions baseless. He emphasized that under common law, an Agent cannot delegate its authority without the principal's explicit consent, as Agency Agreements are personal and based on trust, skill, or experience. He submitted that the Agent herein had no implied authority to appoint sub-agents or deputies. He referred to the Black’s Law Dictionary definition of a retainer and the case of Ohaga and Akiba Bank [2008] 1 E.A, and contended that the Advocate lacked a valid Retainer Agreement with the client company, and under the law, the absence of a retainer creates a presumption that the Advocate acted without authority. He contended that the Advocate has no valid claim against the client company.
13. It was stated by Counsel that taxation is guided by the principles espoused in the case of Premchand Reich v Quarry Services of EA Ltd & others EALR [1972] EA 162. Mr. Kisilah referred to the Canadian case of Reese v Alberta quoted with authority by the Court in the case of Philiph Muchiri Mugo v Mbeu Kithakwa [2016] eKLR. He further stated that most of the items in the Advocate’s bill of costs are not drawn to scale, thus the Taxing Officer erred in principle in taxing the bill of costs as drawn. Counsel referred to the case of Joreth Limited v Kigano & Associates [2002] | EA. 92, and submitted that in determining instruction fees, the Taxing Officer was required to ascertain the value of the subject matter which she did not, which led her to arrive at the wrong figure and committed an error in principle that necessitates this Court to interfere with the decision of the Taxing Officer.
14. Mr. Mola, cited the provisions of Rule 11(1) of the Advocates Remuneration Order and submitted that the client company failed to comply with the said provisions. He argued that the said client company cannot invoke the provisions of Rule 11(2) of the Advocates Remuneration Order which come to life upon compliance with the provisions of Rule 11(1) of the said Rules. He relied on the Supreme Court case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission & 7 others [2014] eKLR, and submitted that where leave is required and documents are filed without leave, the said documents are a nullity.
15. He argued that the client company improperly sought substantive orders under Rule 11(2) of the Advocates Remuneration Order without first obtaining leave to file a Reference out of time. He urged this Court to disregard all reliefs save for the prayer for leave to file a Reference against the decision of the Deputy Registrar out of time. Counsel cited the Court of Appeal case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, and stated that the client company had not made out a case to warrant being granted an order for leave to file a Reference out of time, against the decision of the Taxing Officer.
ANALYSIS AND DETERMINATION.
16. I have considered the instant application, and the affidavit filed in support thereof, the replying affidavit and the Grounds of Opposition filed by the Advocate, together with the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether compliance with the provisions of Rule 11(1) of the Advocates Remuneration Order is mandatory;
ii) Whether the client company should be granted leave to file a Reference against the Taxing Officer’s decision out of time; and
iii) Whether the Taxing Officer’s decision should be set aside and the Advocate’s bill of costs remitted to the Taxing Officer for re-taxation.
Whether compliance with the provisions of Rule 11(1) of the Advocates Remuneration Order is mandatory.
17. The Advocate’s position is that the client company did not comply with the provisions of Rule 11(1) of the Advocates Remuneration Order, thus the instant application is a nullity. The procedure for objecting to a Taxing Officer’s decision is provided for under Rule 11(1) & (2) of the Advocates Remuneration Order which states as hereunder –
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. (Emphasis added).
18. From the record, it is evident that the Taxing Officer delivered a ruling on the Advocate – Client bill of costs dated 16th February 2023 on 31st October 2023. It is however not in contest that despite being dissatisfied with the said ruling, the client company has to date never complied with the provisions of Rule 11(1) of the Advocates Remuneration Order which mandates a party dissatisfied with a decision arising from taxation of a bill of costs to issue to the Taxing Officer with a Notice of Objection. In the case of Matiri Mburu & Chepkemboi Advocates vs Occidental Insurance Company Limited [2017] eKLR, the Court in striking out a Reference held as follows -
…..the provisions of Paragraph 11 of the Remuneration Order serve several purposes. Firstly, the requirement that a party seeking reasons gives a notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus, the taxing master, adverse party and ultimately the Reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages. The objective is obvious: the expeditious disposal of taxation disputes. Thus, compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest.
19. In the instant application, the client company has not sought leave and/or extension of time to comply with the provisions of Rule 11(1) of the Advocates Remuneration Order, so as to properly invoke the jurisdiction of this Court even to extend time for the filing of a Reference.
20. It is now well settled that the Court’s jurisdiction to hear and determine a Reference is invoked upon compliance with the provisions of Rule 11(1) of the Advocates (Remuneration) Order. Further, this Court is of the considered view that a Notice of Objection serves the same purpose as a Memorandum of Appeal, hence failure to file and serve a Notice of Objection is not a technical issue that can be cured by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010. To the contrary, non-compliance with the said provisions is fatal as it goes to the root of the invocation of the High Court’s jurisdiction to deal with a Reference.
21. In the case of Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR, the Supreme Court of Kenya considered the importance of adherence to the laid down procedures when a party approaches a Court of law as hereunder -
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.
22. This Court finds that compliance with the provisions of Rule 11(1) of the Advocates Remuneration Order is mandatory, and failure to comply with the provisions therein is fatal.
23. Consequently, it is my finding that this Court’s jurisdiction to hear and determine the instant application was not properly invoked. I therefore have no jurisdiction to hear and fully determine the issues raised in the application herein on merits, save for what I have determined in this ruling.
24. The upshot is that the instant application is defective for want of issuance of a Notice of Objection. It is hereby struck out with costs to the Advocate/respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Muriithi h/b for Mr. Kisilah for the client/applicant
No appearance for the Advocate/respondent
Ms B. Wokabi - Court Assistant
2. The application is predicated on the grounds on the face of the Summons, and it is supported by an affidavit sworn on the same day by Mohan Chal, the client’s Managing Director. The client company’s case is that a dispute arose between it and the Kenya Revenue Authority (hereinafter referred to as the KRA) sometime in the year 2019 over taxes for the years 2015 to 2017, wherein KRA had assessed additional taxes of Kshs.24,495,295.19 in March 2019, which the company contested. Mr. Chal averred that after filing an objection and thereafter an appeal at the Tax Appeals Tribunal being Tax Appeal No. E148 of 2021, the Tax Appeals Tribunal delivered its judgment which the company was still aggrieved with, thus it instructed its Auditors to appeal against it at the High Court.
3. Mr. Chal contended that the company never instructed the Advocate to represent it at the Tribunal and/or at the High Court, as it had engaged Mr. Joseph Ywaya of Ndigro and Associates for purposes of representation. Mr. Chal asserted that the Advocates herein may have been engaged by Mr. Ywaya unilaterally, and the Advocate lodged an appeal against the decision of the Tax Appeals Tribunal without authorization since the ADR process that resolved the dispute between the client and KRA was handled solely by Ndigro and Associates.
4. Mr. Chal contended that the Advocate – Client bill of costs against the company is unjustified and inflated. He stated that in any event, the said bill was processed ex parte, without the company’s involvement or knowledge, and the ruling was made without notice to the client company. He indicated that it is for the said reasons that the company seeks leave of this Court to file a Reference out of time to challenge the Deputy Registrar’s ruling and to have the Advocate’s bill of costs set aside or remitted for proper taxation. He argued that the fees charged are disproportionate and unjustifiable, as no proper instructions were given.
5. In opposition to the application, the Advocate filed Grounds of Opposition dated 4th March 2024 raising the following grounds -
i) That the application is frivolous, vexatious and calculated to waste the time of the Honorable Court;
ii) That at all times the applicant was served and a return of service was filed and uploaded on the CTS (Court Tracking System);
iii) That the applicant confirms receipt of Notice of Election and Notice of Taxation but denies receipt of all other Court processes yet the same were served through the same email;
iv) That the Advocate received instructions through the applicant’s Agents who act in favour of the applicant and the orders obtained continue to be enjoyed by the applicant;
v) That the Advocate already filed an application under Section 52 of the Advocates Act seeking to make the taxed costs an order of the Honourable Court and the applicant’s application is an attempt to deny the Advocates of their rightful hard-earned money;
vi) That further, the applicant’s application has been lodged out of time, contrary to Rule 11 of the Advocates (Remuneration) Order;
vii) That the application is an afterthought, the same having been filed only after the applicant was made aware of the Certificate of Taxation; and
viii) That it is from the foregoing grounds that the applicant’s application dated 1st February 2024 should be dismissed with costs.
6. The Advocate also filed a replying affidavit sworn on 30th April 2024 by Alex Wang’oma Mola, an Advocate of the High Court of Kenya and learned Counsel for the Advocate. He averred that the instant application is incompetent for want of compliance with Rule 11 of the Advocates Remuneration Order. He further averred that the client company has not made out a case to warrant being granted an order for leave to file a Reference out of time. The Advocate contended that it had instructions from the client company to lodge an appeal against the decision of the Tax Appeals Tribunal to the High Court, and to represent it in the said appeal. Mr. Mola asserted that the client company was duly served with all the requisite notices and documents for the taxation proceedings in this matter.
7. It was stated by Counsel that its firm of Advocates was engaged on 4th July 2021, by Auditor Joseph Yaywa, under instructions from the client company and Butt & Associates, to file an appeal against the Tax Appeals Tribunal’s decision in TAT No. 399 of 2019. He deposed that since Auditors cannot represent clients in High Court Appeals, the Advocate’s firm was tasked with filing a Notice of Appeal and later preparing and lodging the Appeal accompanied with an application seeking orders for stay of execution, which was done within the required timelines. Counsel further stated that he negotiated with the KRA on security for costs, proposing Kshs.1,000,000/= after consulting the client company, though a consent order dated 20th August 2021, set the amount at Kshs.2,000,000/=. Mr. Mola averred that throughout the process, the client and Mr. Yaywa were kept fully informed of developments and the progress of the case, and at no point did the client company object.
8. Mr. Mola referred to an email sent to the client's email address on 28th September 2021, providing updates and requesting payment of a fee note dated 13th August 2021, for Kshs.1,747,498.00, which email elicited no response from the client company. He contended that despite receipt of the said email, the client did not object to the Advocate’s involvement, but instead, together with Mr. Yaywa, it engaged the Advocates regarding fees, proposing terms that were rejected, thereby confirming that the client company acknowledged their services. Counsel argued that instructions can be inferred from conduct, and the client was aware of, and benefited from their representation. He averred that he actively participated in the ADR process which was as a result of the Appeal filed by them against the decision of the Tax Appeals Tribunal, representing the client company’s interests, and he appeared in Court to adopt the consent.
9. Counsel for the Advocate contended that taxation notices and related documents were served, and the Court determined the bill of costs as undefended after the client failed to appear. He emphasized that the Deputy Registrar’s ruling on costs was informed and based on substantiated work, including filing the Appeal, securing a stay, lifting Agency Notices, and successfully negotiating the ADR process. He argued that the client’s failure to challenge the bill of costs during taxation barred it from questioning the jurisdiction of the Taxing Officer. He contended that the client deliberately ignored notices, failed to defend the bill of costs, and is guilty of laches, which makes its application for leave unfounded.
10. The application herein was canvassed by way of written submission. The client’s submissions were filed on 26th March 2024 by the law firm of M/s Sheth & Wathigo Advocates, whereas the Advocate’s submissions were filed by the law firm of Mola Kimosop Advocates on 25th July 2024.
11. Mr. Kisilah, learned Counsel for the client company referred to Rule 11 of the Advocates Remuneration Order and submitted that this Court has the discretion to extend time within which a dissatisfied party can file a Reference against the decision of the Deputy Registrar with respect to tax matters. He further submitted that though the Reference herein was filed out of time, the delay was occasioned by the fact that the client company was neither served nor notified of the date for the ruling of the Advocate’s bill of costs, thus it did not know when it came up. He relied on the case of Makhecha & Gitonga Advocates v The Standard Group Plc [2022] eKLR, and urged this Court to find that the delay in filing the Reference herein is justifiable. Counsel urged this Court to exercise its discretion in favour of the client company and enlarge time for the filing of the Reference.
12. Counsel argued that there was no express authority given to Mr. Joseph Yaywa to instruct the Advocate on behalf of the client company, rendering the alleged instructions baseless. He emphasized that under common law, an Agent cannot delegate its authority without the principal's explicit consent, as Agency Agreements are personal and based on trust, skill, or experience. He submitted that the Agent herein had no implied authority to appoint sub-agents or deputies. He referred to the Black’s Law Dictionary definition of a retainer and the case of Ohaga and Akiba Bank [2008] 1 E.A, and contended that the Advocate lacked a valid Retainer Agreement with the client company, and under the law, the absence of a retainer creates a presumption that the Advocate acted without authority. He contended that the Advocate has no valid claim against the client company.
13. It was stated by Counsel that taxation is guided by the principles espoused in the case of Premchand Reich v Quarry Services of EA Ltd & others EALR [1972] EA 162. Mr. Kisilah referred to the Canadian case of Reese v Alberta quoted with authority by the Court in the case of Philiph Muchiri Mugo v Mbeu Kithakwa [2016] eKLR. He further stated that most of the items in the Advocate’s bill of costs are not drawn to scale, thus the Taxing Officer erred in principle in taxing the bill of costs as drawn. Counsel referred to the case of Joreth Limited v Kigano & Associates [2002] | EA. 92, and submitted that in determining instruction fees, the Taxing Officer was required to ascertain the value of the subject matter which she did not, which led her to arrive at the wrong figure and committed an error in principle that necessitates this Court to interfere with the decision of the Taxing Officer.
14. Mr. Mola, cited the provisions of Rule 11(1) of the Advocates Remuneration Order and submitted that the client company failed to comply with the said provisions. He argued that the said client company cannot invoke the provisions of Rule 11(2) of the Advocates Remuneration Order which come to life upon compliance with the provisions of Rule 11(1) of the said Rules. He relied on the Supreme Court case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission & 7 others [2014] eKLR, and submitted that where leave is required and documents are filed without leave, the said documents are a nullity.
15. He argued that the client company improperly sought substantive orders under Rule 11(2) of the Advocates Remuneration Order without first obtaining leave to file a Reference out of time. He urged this Court to disregard all reliefs save for the prayer for leave to file a Reference against the decision of the Deputy Registrar out of time. Counsel cited the Court of Appeal case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, and stated that the client company had not made out a case to warrant being granted an order for leave to file a Reference out of time, against the decision of the Taxing Officer.
ANALYSIS AND DETERMINATION.
16. I have considered the instant application, and the affidavit filed in support thereof, the replying affidavit and the Grounds of Opposition filed by the Advocate, together with the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether compliance with the provisions of Rule 11(1) of the Advocates Remuneration Order is mandatory;
ii) Whether the client company should be granted leave to file a Reference against the Taxing Officer’s decision out of time; and
iii) Whether the Taxing Officer’s decision should be set aside and the Advocate’s bill of costs remitted to the Taxing Officer for re-taxation.
Whether compliance with the provisions of Rule 11(1) of the Advocates Remuneration Order is mandatory.
17. The Advocate’s position is that the client company did not comply with the provisions of Rule 11(1) of the Advocates Remuneration Order, thus the instant application is a nullity. The procedure for objecting to a Taxing Officer’s decision is provided for under Rule 11(1) & (2) of the Advocates Remuneration Order which states as hereunder –
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. (Emphasis added).
18. From the record, it is evident that the Taxing Officer delivered a ruling on the Advocate – Client bill of costs dated 16th February 2023 on 31st October 2023. It is however not in contest that despite being dissatisfied with the said ruling, the client company has to date never complied with the provisions of Rule 11(1) of the Advocates Remuneration Order which mandates a party dissatisfied with a decision arising from taxation of a bill of costs to issue to the Taxing Officer with a Notice of Objection. In the case of Matiri Mburu & Chepkemboi Advocates vs Occidental Insurance Company Limited [2017] eKLR, the Court in striking out a Reference held as follows -
…..the provisions of Paragraph 11 of the Remuneration Order serve several purposes. Firstly, the requirement that a party seeking reasons gives a notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus, the taxing master, adverse party and ultimately the Reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages. The objective is obvious: the expeditious disposal of taxation disputes. Thus, compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest.
19. In the instant application, the client company has not sought leave and/or extension of time to comply with the provisions of Rule 11(1) of the Advocates Remuneration Order, so as to properly invoke the jurisdiction of this Court even to extend time for the filing of a Reference.
20. It is now well settled that the Court’s jurisdiction to hear and determine a Reference is invoked upon compliance with the provisions of Rule 11(1) of the Advocates (Remuneration) Order. Further, this Court is of the considered view that a Notice of Objection serves the same purpose as a Memorandum of Appeal, hence failure to file and serve a Notice of Objection is not a technical issue that can be cured by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010. To the contrary, non-compliance with the said provisions is fatal as it goes to the root of the invocation of the High Court’s jurisdiction to deal with a Reference.
21. In the case of Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR, the Supreme Court of Kenya considered the importance of adherence to the laid down procedures when a party approaches a Court of law as hereunder -
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.
22. This Court finds that compliance with the provisions of Rule 11(1) of the Advocates Remuneration Order is mandatory, and failure to comply with the provisions therein is fatal.
23. Consequently, it is my finding that this Court’s jurisdiction to hear and determine the instant application was not properly invoked. I therefore have no jurisdiction to hear and fully determine the issues raised in the application herein on merits, save for what I have determined in this ruling.
24. The upshot is that the instant application is defective for want of issuance of a Notice of Objection. It is hereby struck out with costs to the Advocate/respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Muriithi h/b for Mr. Kisilah for the client/applicant
No appearance for the Advocate/respondent
Ms B. Wokabi - Court Assistant