Wilfay Investment Ltd v Mwema & 7 others

2. When served with the application, the appellant/Respondent led a replying adavit to oppose the aforesaid application. When the application came up for interpartes hearing, this court gave directions which is to the eect that the application would be disposed o by written submissions. 3. I have considered the grounds set out on the face of the application plus the rival written submissions and the authorities cited. 4. It is the submission of the applicant that there was a patently gross error on the face of the record regarding the ruling by the taxing ocer dated 14/2/2026 which did not relate to the determination of item by item of the items in the Bill of Costs hence the recourse to an application for review before the same court. 5. It is further the submission of the 8th Respondent/Applicant that he chose to le the instant application instead of appealing against the ruling dated 14th February, 2025 ad the issues being raised transcend the matters of taxation. 6. The appellant/Respondent is of the submission the 8th Respondent/Applicant’s application is abuse of the court process and should therefore be struck out. It is pointed out that the 8th Respondent is attempting to achieve indirectly what he failed to pursue directly through a reference. 7. It is further argued that the applicant’s contention that there exists an error apparent on the fact of the record cannot cure the incompetence and indolence exhibited in his conduct in relation to the matter. 8. The appellant/Respondent further argued that whether or not the taxing ocer misconstrued the nature of the applicant’s Bill of Costs, it is patently clear from paragraph 2 of the Advocates (Renumeration order) that the distinction between an Advocate-client Bill of Costs and a Party and Party Bill of Costs is immaterial for purposes of challenging a decision of the taxing ocer. 9. It is argued that once a Deputy Registrar rendered a ruling in her capacity as the Taxing Ocer any party aggrieved by that decision was required to invoke the procedure prescribed under Rule 11 of the Advocates Renumeration Order within the stipulated timelines. 10. The background of instant application appears to be short and straightforward. The 8th Respondent’s grievance is against the taxing ocer’s ruling dated 14th February, 2025 that upheld the Preliminary Objection and dismissed the 8th Respondent’s Bill of Costs dated 16th October, 2023. 11. The Respondent’s Party and Party Bill of Costs which was led on 29th November, 2023 was dismissed under the provision of Section 4(4) of the Limitation of Actions Act for being statute barred vide the ruling delivered on 14/2/2025. 12. It is clear from the record that parties were given 14 days to challenge the dismissal order. The 8th Respondent/Applicant instead of ling a reference opted to le the instant application for review under order 45 rules 1(1) (b) and2 of the Civil Procedure Rules. 13. The main issue which should be determined in the instant application is whether the recourse for intervention against the taxing ocer’s ruling is by reference under paragraph 11 of the Advocates Renumeration order or by an application for review. 14. Having considered the rival submissions over the issue I have come to the following conclusions in the matter. First, that it is trite law that a party dissatised with a taxing ocer’s decision is required to https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/928/eng@2026-09-22 2

page 2 of 3

challenge the decision through a reference before a Judge. This issue was settled in the case of Machira & Co. Advocates Vs Magugu & Anotehr (2002) e E.A 428 where the Court of Appeal held inter alia: “ …any complaint about a decision of the taxing ocer 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”. 15. Paragraph 11 of the Advocates (Renumeration) order prescribes timelines as follows: “ Should any party object to the decision of the taxing ocer, be may within fourteen days after the decision give notice in writing to the taxing ocer of the items of taxation to which he objects”. 16. It is apparent that the 8th Respondent failed to issue a notice of objection within 14 days and thereafter le a reference under Rule 11 of the Advocates (Renumeration) order. 17. With respect I am persuaded by the arguments put forward by the appellant/Respondent that instant application is incompetent. Even if the same is deemed as a reference, the same was not led within the timelines prescribed under paragraph 11 of the Advocates (Renumeration) order. I agree that the instant application was led in abuse of the court process. 18. 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. DATED, SIGNED AND DELIVERED AT NAKURU THIS 22ND DAY OF SEPTEMBER, 2026. J. K. SERGON JUDGE In the presence of: Jamleck/Rutoh C/A Mbiyu for the 1st – 7th Respondent Njambi holding brief for Kagucia for Appellant/Respondent https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/928/eng@2026-09-22 3

page 3 of 3