Introduction
1. The applicants herein filed the chamber summons, application, dated 16th July 2024 seeking to set aside the taxed bill of costs in the sum of kshs. 57,950/- given in a ruling delivered in Kabarnet CMC ELC E028 of 2024-Samson Rotuno Chebii (plaintiff) vs. Moses Chelimo and 2 others (defendants).
2. The application is premised on the grounds that the taxing master did not take into consideration issues the applicants had raised in support of their bill of costs, dated 15th August 2023 thereby arriving at a very low amount which does not reflect that they were three defendants in the case. The applicants contend that the assessed costs are too low and are not supported by the facts.
3. In reply and opposition to the application, the respondent filed the notice of preliminary objection dated 18th January 2025 seeking to dismiss the application on the grounds that;
a) The application is fatally defective, vexatious, discloses no reasonable cause of action and is bad in law as the applicants have not extracted and annexed to the application a certified copy of the order/ruling and/or certificate of costs by the taxing master contrary to the provisions of Order 3 rule 2 and Order 42 rule 2, rule 13(4)(f) of the Civil Procedure Rules, 2010 hence there is nothing for the court to adjudicate on;
b) The application offends the whole of the provisions of section 11 of the Advocates (Remuneration) Order, 2014 (Rev.2024) Cap 16, which among other provisions, obligates the applicant to within 14 days of the taxing master’s decision to object in writing the decision of the taxing master of the items of taxation to which he objects as well as notify the adverse party of the objection. There is no such record of compliance with section 11 before the court;
c) The application was filed out of time in that it was required to be filed within 28 days of the taxation decision which was rendered on 19th March, 2024. The application was filed on 19th July 2024, over three (3) months out of time and no application to file out of time has been made and or allowed by the court and so it is time and statute barred by dint of section 11 of the Advocates (Remuneration) Order, 2014 (Rev. 2024), Cap 16;
d) The applicants are vexatious litigants;
e) The honourable court lacks jurisdiction to determine the applicants’chamber summons application dated 16th July, 2024.
4. In a rejoinder, the applicants through the replying affidavit sworn by the 2nd applicant on 7th February 2025, have deponed that their objection was made within the provisions of Rule 11(1) of the Advocates Remuneration Order; that objection to the taxed bill of costs was filed within the statutory period hence not time barred and that this court is seized of jurisdiction to hear and determine the application. Further, that the preminary objection does not raise pure points of law as it contains facts which require interrogation by the court. The applicants further contend that defects, if any in the application are curable under Article 159(2)(d) of the constitution.
5. The application was disposed of by written submissions.
6. In his written submissions filed on 19th February 2025, the respondent maintains that the application is bad in law for failure by the applicants to extract the order/ruling sought to be set aside. In that regard, the respondent has made reference to the case of Wilson Saina vs. Joshua Cherutich T/a Cherutich Company Ltd (2003) e KLR and Order 3 Rule 2 of the Civil Procedure Rules.
7. According to the respondent, a copy of the order/ruling sought to be set aside is an important document without which the court would be handicapped in adjudicating the application. The respondent maintains that failure by the applicants to extract the order/ruling sought to be set aside and annex it to the application, makes the application incompetent and defective hence ripe for dismissal on that ground.
8. On failure to comply with the mandatory provisions of Section 11 of the Advocates (Remuneration) Order, Cap 16 of the Advocates Act, based on the decision in the case of Speaker of the National Assembly vs. James Njenga Karume (1992)e KLR, the respondent submits that the applicants erred by not adhering to the procedure set out under Section 11 of the Advocates (Remuneration) Order, Cap 16 of the Advocates Act.
9. Based on the above cited provision of the law, the respondent submits that in the absence of evidence of compliance with the above cited provisions of the law, the court lacks jurisdiction to entertain the application.
10. Terming the letter of objection annexed to the applicants’ supplementary affidavit doubtful and unreliable, the respondent points out that the court date stamp on the letter is overwritten and illegible.
11. The respondent takes issue with the fact that the letter was belately filed and terms its filing an afterthought. The respondent also points out that the letter has not specified the items objected to as required by law, Section 11 of the Advocates Remuneration Order, aforementioned.
12. Based on the decision in the case of Dennis K. Magare & Ben Musundi T/A Magare & Ben Musudi T/A Magare Musundi & Co. Advocates vs. Parminder Singh Manku & Baljinder Kaur Manku Nairobi ELC MISC CASE NO. 166 OF 2018-(unreported); the respondent submits that none compliance with Section 11(1) of the Advocates Remuneration Order renders the application incompetent.
13. Regarding the contention that the application was filed out of time, the respondent makes reference to Section 11(2) of the Advocates Remuneration Order and reiterates that the application is time barred as it was filed outside the time provided for by law for filing such an application.
14. As to whether failure to adhere to the timelines provided for by law is a procedural technicality curable by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, the respondent submits that timelines are not technicalities of procedure that can be accomodated under the provisions of Article 159(2)(d) of the Constitution of Kenya. In that regard, the respondent makes reference to the cases of Mirugi Kariuki & Co. Advocates vs. Andrew Isoe Ochoki Nakuru ELC Misc Application No. 9 of 2021)-(unreported) ; APA Insurance Company vs. Vincent Nthuka; Raila Odinga vs. Independent Electoral and Boundary Commission & others (2013)e KLR and Hon. Jared Odhiambo Opiyo & 6 others vs. The Migori County Assembly & 7 others (UR).
15. In their submissions dated 7th March 2025, the applicants acknowledge that they did not attach a decree or order of the court regarding the taxed bill sought to be set aside but contend that failure to attach the order cannot be a reason to stop the taxation or assessment of the bill of costs by this court.
16. The applicants also acknowledge that the application was not filed within the timelines provided in paragraph 11 of the Advocates Remuneration Order. Explaining that the delay was caused by absence of the court-the Taxing master was not sitting from the time of issuing its ruling until 2nd July 2024 when he ruled that it was functus officio, based on the decision in the case of Muri Mwaniki & Wamiti Advocates vs. Azal Ltd & Another KEHC 16840 KLR and the case of Vincent Kibiwott Rono vs. Abraham Kiprotich Chebet & 3 others the applicant submits that the defects in the application do not render the application fattally defective.
17. The applicant further submits that the preliminary objection raised by the respondent is not a proper preliminary objection as contemplated in the case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors (1969)EA 696 as it is based on facts that require to be interrogated.
18. The applicant further submits that the preliminary objection is based on technicalities of procedure which are curable under Article 159(2)(d) of the Constitution of Kenya 2010.
Analysis and determination
19. I have carefully read and considered the issues raised in the application and the objection raised by the respondent.
20. Whereas the preliminary objection taken up by the respondent raised mixed issues of law in respect of which evidence would ordinarily be required to determine the application, the applicants filed a supplementary affidavit responding to the issues of law and fact thereby making the issues raised determinable from the pleadings filed by the parties.
21. From the application, the response filed in response thereto and the submissions, I find the main issues for the court’s determination to be:-
i) Whether in filing the application, the applicants complied with the provisions of section 11(1) of the Advocates Remuneration Order;
ii) If the answer to (i) above is negative, whether none compliance of the provisions of section 11 renders the application fatally defective?
iii) What orders should the court grant.
22. On whether in filing the application the applicants complied with the provisions of section (read Paragraph) 11 of the Advocates (Remuneration Order), I have considered the affidavit evidence adduced in this application vis-the applicable law, that is Paragraph 11(1) of the Advocates (Remuneration) Order, which provides as follows:-
11(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.”
23. As to whether the applicants complied with the procedure set out in Paragraph 11(1) of the Advocates Remuneration Order, at the time of filing the application and the objection thereto, there was no proof of compliance with that provision of law by the applicants.
24. In a bid to prove that they complied with that Section of the law, the applicants filed a replying affidavit, sworn on 7th February, 2025 in which they attached a letter Ref. C/259/CIV/219/952/2022, purported to have been received in court on 2nd April, 2024. I say purported to have been received in court on 2nd April 2024 because there is an overwriting on the date the letter is said to have been received. That overwriting has not been countersigned. There is no indication in the letter as to when it was written. In the circumstances, it is doubtable as to whether the letter was indeed received in court on 2nd April 2024, which was the last day the applicants ought to have filed the reference. Be that as it may, by dint of the provisions of Paragraph 11(1) of the Advocates Remuneration Order, the applicants were supposed to specifically indicate the items objected to, in their objection.
25. In the circumstances of this case, the applicants merely complained about failure by the taxing master to consider the response contained in their supplementary affidavit sworn on 11th March, 2024.
26. The obligation imposed on the applicants was to give notice to the taxing officer of items of taxation to which they objected.
27. A general complaint that the taxing master did not take into account their response to objection to their bill of costs without indicating the manner in which failure to consider the response affected the taxed items, rendered the objection defective as the taxing officer was not by operation of law required to review or sit on appeal on his decision but to give reasons for arriving at the decision objected to.
28. In Dennis K. Magare & Ben Musundi T/A Magare Musundi & Company Advocates v. Parminder Singh Manku & another Nairobi ELC Misc. Case No. 166 of 2018 the court stated:-
“It is important to note that the notice of objection must stipulate and/or contain particular items which the applicant contends to be aggrieved and/or disatisfied with...My reading of the provision of rule 11(1) of the Advocates Remuneration Order drives me to the conclusion that the lodgement of the notice of objection to taxation, is peremptory mandatory and/or imperative. In any event, the notice of objection, must speak to specific items which are objected to. It is further my observation that where a notice of taxation is lodged, the same must be specific and must not be omnibus. For clarity, an omnibus notice if any, would be incompetent and incapable of grounding a reference before this honourable Court...”
29. Having determined that the objection filed in this matter is in the nature of an omnibus objection as it does not specify the specific items objected to, if any objected and persuaded by the decision in the case of Dennis K. Magare & Ben Musundi T/A Magare Musundi & Company Advocates v. Parminder Singh Manku & another (supra), I find and hold that the applicants did not comply with the obligations imposed on them by Paragraph 11(1) of the Advocate Remuneration Order.
30. As to whether failure to comply with the obligations imposed on them by Paragraph 11(1) of the Advocates Remuneration Order has the effect of rendering the applicant’s application fatally defective, being of the view that compliance with the procedures contemplated in Paragraph 11(1) of the Advocates Remuneration Order is critical for ensuring fair determination of the issues arising from the reference, I find and hold that failure to comply with the obligations imposed by Paragraph 11(1) of the Advocates Remuneration Order is not a procedural technicality that is capable of being cured under Article 159(2)(d) of the Constitution.
31. The upshot of the foregoing is that the respondent’s preliminary objection is merited. Consequently, I uphold it and dismiss the applicants’ reference dated 16th July 2024 with costs to the respondent.
32. Orders accordingly.
Dated, signed and delivered this 27th day of March, 2025.
Ruling delivered Virtually in the presence of:
- Ms. Barasa for the applicants.
- Mr. Bartous for the Respondent.
- Ian – Court Assistant.