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Court of AppealDismissedCivil Appeal ( memorandum of appeal dated 15th February 2019, arising from Kerugoya Misc. Application No. 6 of 2017)

Wambugu Kariuki & Associates Advocates v Invesco Assurance Company Ltd (Civil Appeal 31 of 2019) [2025] KECA 1234 (KLR)

Court of Appeal
27 June 2025
2,311 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that advocates must first obtain a taxing master's reasons before challenging a taxed bill in Kenya's High Court.

What this practically means

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Executive summary

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This appeal arose from an advocate-client bill of costs filed by Wambugu Kariuki & Associates Advocates in the High Court at Kerugoya in respect of services rendered to Invesco Assurance Co. Ltd in Baricho PMCC No. 29 of 2012. The Taxing Master struck out the bill on 14th July 2017 for non-compliance with the rules and directed the filing of a compliant fresh bill. Instead, the appellant wrote to the Deputy Registrar requesting certified proceedings and the ruling, expressly for purposes of filing a reference to the High Court. The appellant then filed a chamber summons seeking to set aside the Taxing Master's orders and to have the bill taxed afresh. The respondent raised a preliminary objection that the reference did not comply with rule 11 of the Advocates Remuneration Order and that the proper recourse was an appeal. The High Court (L W Gitari, J) upheld the objection and dismissed the reference, holding that the appellant's letter did not constitute the objection or notice contemplated by rule 11(2) because it never sought the taxing officer's reasons. The Court of Appeal dismissed the appeal. It held that an unopposed application must still be determined on its merits, and that the Judge was entitled to consider the preliminary objection without the respondent's submissions. On the merits, the Court found that the appellant had not sought reasons from the taxing master as rule 11 requires, so no competent reference was before the High Court; the reference was improperly brought under a procedure unknown to law. The appeal was dismissed with no order as to costs, the appeal having been undefended.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in not finding that the respondent's preliminary objection had been abandoned for failure to file submissions or attend court
  2. 2.Whether the appellant complied with rule 11(1) and (2) of the Advocates Remuneration Order before filing the reference to the High Court
  3. 3.Whether the reference was competent and whether the Judge erred in upholding the preliminary objection and dismissing it

Key legal issues

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01

Effect of non-opposition on a preliminary objection

Holding

The High Court was entitled to hear and determine the preliminary objection despite the respondent's failure to file submissions or attend; non-opposition does not compel the court to allow an incompetent application

Reasoning

The Court held that an unopposed application must still be evaluated on the material before it and the law. The preliminary objection was purely on points of law, questioning the court's jurisdiction to entertain a purported reference. The Judge therefore acted properly in considering and upholding it without the respondent's submissions.

p. 2
02

Compliance with rule 11(1) and (2) of the Advocates Remuneration Order

Holding

The appellant's letter requesting only certified proceedings and the ruling did not amount to a demand for the taxing officer's reasons, so the prerequisite to a reference was never satisfied and the reference was incompetent

Reasoning

Rule 11(2) requires the taxing officer to record and forward reasons for the decision on disputed items, after which the objector may apply to a Judge by chamber summons. The appellant's letter expressly sought proceedings and ruling for purposes of filing a reference so the High Court could identify the rules offended, not reasons from the taxing master. The precondition to a reference was therefore absent, and the reference was improperly brought under a procedure unknown to law.

p. 5

Legal principles established

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  • An unopposed application must still be considered on its merits; a court is entitled to determine a preliminary objection even in the absence of submissions from the party who filed it
  • Before moving to the High Court by way of reference under rule 11 of the Advocates Remuneration Order, an aggrieved party must first seek and obtain (or be denied) the taxing master's reasons for the decision on the taxed items
  • A letter seeking only certified proceedings and the ruling, without seeking reasons from the taxing officer, does not constitute an objection or notice under rule 11(2) and does not found a competent reference

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kerugoya
Misc. Application No. 6 of 2017 (reference by chamber summons dated 26th September 2017)
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Court of Appeal Rules; appeal against a ruling on a reference under rule 11 of the Advocates Remuneration Order

Relief refused

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Setting aside the High Court ruling upholding the preliminary objection and dismissing the reference

The appellant did not comply with rule 11 of the Advocates Remuneration Order; what was filed was not a competent reference

p. 5

Costs

Appeal dismissed with no order as to costs, as the appeal was not defended.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Before a party who is aggrieved with a decision of a taxing master moves to the High Court by way of reference, he/she should seek explanations from the taxing master on any issues arising from the taxed bill.
p. 4Preconditions to a rule 11 reference
the fact that an application is not opposed does not, ipso facto, mean that it has to be allowed regardless of whether the same is competent or not.
p. 2Unopposed applications
Accordingly, we find no merit in this appeal which we hereby dismiss with no order as to costs as the appeal was not defended.
p. 5Final orders and costs

Issues in the judgment

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minor

The judgment gives the date of the High Court ruling as 1st March 2018 in the narrative but the memorandum of appeal refers to 'ruling dated 18th March 2018', an internal inconsistency

minor

The case number of the appeal before the Court of Appeal is not stated in the judgment; only the memorandum of appeal date and the origin in Kerugoya Misc. Application No. 6 of 2017 appear

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wambugu Kariuki & Associates Advocates v Invesco Assurance Company Ltd (Civil Appeal 31 of 2019) [2025] KECA 1234 (KLR)", Case Analysis (2025). Civil Appeal ( memorandum of appeal dated 15th February 2019, arising from Kerugoya Misc. Application No. 6 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1234/eng@2025-06-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.