Owuor v Okatch
The bottom line
#The Environment and Land Court dismissed a bid to challenge a taxed legal bill and land-transfer consent, ruling the applicant waited nearly a year too long.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant application is merited
- 2.Who should bear the costs herein
Key legal issues
#Whether leave should be granted to file a reference out of time under rule 11(4) of the Advocates Remuneration Order
Leave refused; the delay from 5th August 2022 (when the applicant learnt of the bill) to 7th July 2023 was inordinate with no sufficient justification
The court applied the rule 11(4) discretion guided by the factors in Paul Wanjohi Mathenge: period of delay, reasons for delay, prejudice, and public importance. The applicant knew of the taxation on 5th August 2022 but filed on 7th July 2023, nearly a year later, without adequate explanation. Article 159(2)(b) that justice shall not be delayed reinforced the refusal.
Whether the court could set aside the consent dated 6th June 2023
The court held it lacked jurisdiction because the consent was filed at the trial court in satisfaction of that court's decree and no appeal challenged it
Although the general law on impeaching consent orders (fraud, collusion, policy of the court) was recited, the court found the consent belonged to the trial court's decree. The applicant had withdrawn Homa Bay ELC Appeal No. E006 of 2023 by consent dated 31st May 2023, so no challenge to the consent's validity was pending before this court.
Whether the taxing master's decision and certificate of costs should be set aside or the bill re-taxed
Refused; without a competent reference the court cannot interfere with the bill of costs
Relying on Donholm Rahisi Stores, taxation is a special jurisdiction of the taxing officer, and the court's only route is a reference under rule 11. Since leave to file a reference out of time was refused, the challenge to the taxation of the bill dated 7th April 2021 necessarily failed.
Legal principles established
#- Taxation of costs is a special jurisdiction reserved to the taxing officer; the court intervenes only by way of reference under rule 11 of the Advocates Remuneration Order
- A court will not interfere with a consent judgment except on grounds such as fraud, collusion or agreement contrary to the policy of the court
- Where a court lacks jurisdiction it must down tools
Court orders
#- 1.The chamber summons dated 7th July 2023 is dismissed
- 2.Prayer (b) for leave for Kenja and Company Advocates to come on record declared overtaken by events
- 3.Costs of the application to be borne by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010; sections 1A, 1B and 3A of the Civil Procedure Act; rule 11(4) of the Advocates Remuneration Order
Relief refused
#Leave to file a reference out of time against the taxing master's ruling
Inordinate and unexplained delay between knowledge of the bill (5 August 2022) and filing (7 July 2023)
Setting aside of the consent dated 6th June 2023
The consent was filed at the trial court in satisfaction of that court's decree; this court lacks jurisdiction over it
Stay of execution and setting aside of certificate of costs, warrants and proclamation
Follows dismissal of the application; decree already executed on 27th July 2023
Setting aside/quashing of the taxing master's decision and re-taxation of the bill of costs
Without leave to file a reference out of time, the court cannot interfere with the bill of costs
Costs
By dint of the proviso to section 27(1) of the Civil Procedure Act, the costs of the application shall be borne by the applicant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the foregone, it is my considered view that the instant application instituted by way of chamber summons dated 7th July 2023 is devoid of merit. It is hereby dismissed.
By dint of the proviso to section 27(1) of the Civil Procedure Act, chapter 21 Laws of Kenya, the costs herein shall be borne by the applicant.
Clearly, the delay is inordinate and no sufficient reason has been given to justify the same.
this court is not seized of jurisdiction to make a determination on whether the consent dated 6th June 2023 should be set aside.
Accordingly, this court cannot interfere with the terms of the bill of costs dated 7th April 2021.
Issues in the judgment
#Date of the bill of costs stated inconsistently as 7th April 2021 and 7th March 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owuor v Okatch", Case Analysis (2023). Miscellaneous Application E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20950/eng@2023-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.