Shah & 2 others v Koki Mbulu & Co Advocates (Miscellaneous Application E1404 of 2023) [2024] KEELC 4268 (KLR)
The bottom line
#The High Court struck out a challenge to a Kshs. 10 million taxed legal bill because the applicants' objection letter failed to specify which taxed items they disputed.
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 Notice of Preliminary Objection raises a pure point of law and thus meets the threshold for what constitutes a Preliminary Objection
- 2.Whether the Applicants complied with the provisions of Rule 11(1) of the Advocates Remuneration Order and if not, the legal consequence attendant thereto
- 3.Whether the Reference before the court is meritorious
Key legal issues
#Whether the objection to the Reference was a valid preliminary objection
Yes - it raised a pure point of law based on settled facts, namely the competence of the applicants' letter of 13th December 2023 against Rule 11(1)
The court restated the Mukisa Biscuits threshold and the Supreme Court's formulation in IEBC v Cheperenger. It found that compliance with Rule 11(1) was determinable purely from the documents filed by the applicants, without ascertaining disputed facts or exercising discretion, so the objection was properly a preliminary point of law.
Whether the applicants complied with Rule 11(1) of the Advocates Remuneration Order
No - their letter of 13th December 2023 did not identify the items of taxation objected to
Rule 11(1) requires a written notice specifying the items of taxation objected to within fourteen days. Following Machira & Co. Advocates v Arthur K. Magugu, the court held that a letter merely seeking reasons, without identifying the impugned items, is fatally defective and renders the reference incompetent and a nullity.
Whether the Reference was meritorious
The court could not determine merit because the Reference was a nullity; the invitation was misconceived and stillborn
Alleged errors of commission and omission by the taxing officer could only be interrogated if a competent Reference existed. Having found the Reference invalid for non-compliance with Rule 11(1), there was no valid reference before the court capable of meritorious determination.
Legal principles established
#- A notice of objection under Rule 11(1) of the Advocates Remuneration Order must identify and specify the items of taxation objected to; an omnibus notice or a mere letter seeking reasons does not suffice and renders the resulting reference incompetent
- A preliminary objection must be founded on a settled and crisp point of law applicable to undisputed facts
- Non-compliance with procedural rules that are jurisdictional prerequisites cannot be cured by Article 159 of the Constitution
Court orders
#- 1.The Reference vide Chamber Summons Application dated 22nd December 2023 be and is hereby struck out
- 2.Costs of the Reference be and are hereby awarded to the Respondent and the same shall be taxed by the Deputy Registrar
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order - reference to a Judge against a taxing officer's decision
Relief refused
#Review, variation and setting aside of the taxing officer's decision of 11th December 2023
The Reference was incompetent for non-compliance with Rule 11(1) of the Advocates Remuneration Order and was struck out
Remission of the Advocate-Client Bill of Costs dated 4th February 2016 to a different taxing officer for fresh taxation
No competent Reference existed upon which the court could interrogate the certificate of taxation
Costs
Costs of the Reference awarded to the Respondent, to be taxed by the Deputy Registrar.
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.
an Applicant cannot file an omnibus notice of objection or better still, a letter seeking for reasons for the taxation and thereafter imagine that such an omnibus request suffices for purposes of Rule 11[1] [supra]
the Reference beforehand does not comply with the mandatory provisions of the law and hence same is not only incompetent but invalid
The Reference vide Chamber Summons Application dated 22nd December 2023 be and is hereby struck out.
Not all procedural deficiencies can be remedied by Article 159; and such is clearly the case, where the procedural step in question is a jurisdictional prerequisite.
Issues in the judgment
#The judgment does not record the parties' full names or the case file number of the reference; the parties are referred to only generically and by a supporting affidavit deponent
Paragraph numbering in the judgment is irregular (paragraphs 1 and 2 are blank; paragraph 67 continues the numbering of the orders introduced at paragraph 66)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah & 2 others v Koki Mbulu & Co Advocates (Miscellaneous Application E1404 of 2023) [2024] KEELC 4268 (KLR)", Case Analysis (2024). Chamber Summons Application dated 22nd December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4268/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.