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Case Brief · caselaw.co.ke
MagistrateDismissedCivil Appeal 18 of 2007

Wilfay Investment Ltd v Mwema & 7 others

High Court of Kenya
22 September 2026
JSJ K Sergon
1,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a late challenge to a taxing officer's decision because the wrong procedure was used and the 14-day deadline was missed.

What this practically means

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Executive summary

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This ruling by J K Sergon J at Nakuru determined an application dated 25th September 2025 by the 8th Respondent, Cosmas Nduda Mbili, seeking to set aside a taxing officer's decision and ruling of 14th February 2025 and to have the Bill of Costs dated 16th October 2023 re-taxed on merits, or alternatively to have the court tax it. The taxing officer had upheld a preliminary objection and dismissed the bill, and had also dismissed a party-and-party bill filed on 29th November 2023 as statute-barred under Section 4(4) of the Limitation of Actions Act. The applicant chose to file a review application under Order 45 rules 1(1)(b) and 2 of the Civil Procedure Rules rather than a reference. The appellant, Wilfay Investment Limited, opposed the application as an abuse of process, arguing the applicant was attempting indirectly to achieve what he had failed to pursue directly through a reference, and that the correct remedy against a taxing officer's decision is a reference under paragraph 11 of the Advocates (Renumeration) Order within 14 days. The court identified the sole issue as whether recourse against a taxing officer's ruling lies by reference or by review. Following the Court of Appeal's decision in Machira & Co. Advocates v Magugu, the court held that all complaints against a taxing officer's decision must be raised by reference to a Judge. The applicant had failed to issue a notice of objection within 14 days or file a reference, and even if the application were treated as a reference it was out of time. The court found the application incompetent, an abuse of the court process, and without merit, struck it out and dismissed it with costs to the appellant.

Questions the Court framed

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

  1. 1.Whether recourse against a taxing officer's ruling is by reference under paragraph 11 of the Advocates (Renumeration) Order or by an application for review under Order 45 of the Civil Procedure Rules
  2. 2.Whether the application dated 25th September 2025 is competent and properly before the court

Key legal issues

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01

Correct procedural avenue against a taxing officer's decision

Holding

A party dissatisfied with a taxing officer's decision must challenge it by reference before a Judge under paragraph 11 of the Advocates (Renumeration) Order, not by an application for review under Order 45 of the Civil Procedure Rules

Reasoning

Relying on Machira & Co. Advocates v Magugu, the court held that all complaints against a taxing officer's decision, whether of law or of taxation of items, go by reference. The distinction between an advocate-client and party-and-party bill is immaterial for challenging a taxing decision. The applicant's choice of review instead of a reference rendered the application incompetent.

02

Compliance with the 14-day timeline under paragraph 11

Holding

Even if the application were deemed a reference, it was filed outside the 14-day period prescribed by paragraph 11, since the applicant failed to issue a notice of objection within 14 days of the taxing officer's ruling

Reasoning

The taxing officer's ruling was delivered on 14th February 2025 and parties were given 14 days to challenge it. The 8th Respondent did not issue a notice of objection or file a reference within that period, instead filing a review application almost eight months later. The delay and wrong procedure amounted to abuse of the court process.

p. 3

Legal principles established

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  • Any complaint about a taxing officer's decision, whether on a point of law or on the taxation of any item, must be ventilated by way of reference to a Judge under paragraph 11 of the Advocates (Renumeration) Order, within fourteen days

Court orders

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  1. 1.The application dated 25th September 2025 was found incompetent and without merit
  2. 2.The application was struck out and dismissed with costs to the Appellant/Respondent

The bench

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

JS
majority

Wrote the judgment

Jurisdiction invoked
Appellate/supervisory jurisdiction over taxation of costs; reference procedure under paragraph 11 of the Advocates (Renumeration) Order

Relief refused

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Setting aside the taxing officer's decision and ruling dated 14th February 2025 and re-taxation of the Bill of Costs dated 16th October 2023

Application was incompetent; the correct remedy was a reference under paragraph 11 of the Advocates (Renumeration) Order within 14 days, which was not pursued; application was an abuse of court process

p. 3

Costs

Costs of the application to the Appellant/Respondent

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.

…any complaint about a decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to grievance about the taxing of any item in the Bill of Costs is ventilated by way of reference to the Judge in accordance with paragraph 11 of the Advocate's Renumeration Order
p. 3Exclusive remedy of reference against taxing officer's decision
I agree that the instant application was filed in abuse of the court process.
p. 3Review application as abuse of process where reference procedure exists
In the end, the application dated 25th September, 2025 is found to be incompetent and is without merit. The same is ordered struck out and dismissed with costs to the Appellant/Respondent.
p. 3Final orders - striking out and dismissal with costs

Issues in the judgment

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minor

Conflicting dates for the taxing officer's ruling

minor

Caption styled 'Civil Appeal' though the ruling determines an interlocutory application, not an appeal

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, "Wilfay Investment Ltd v Mwema & 7 others", Case Analysis (2026). Civil Appeal 18 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/928/eng@2026-09-22

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