Automated Summary
Key Facts
AHMEDNASSIR, ABDIKADIR & CO. ADVOCATES applied to the High Court of Kenya to challenge the requirement of filing an affidavit for a reference under the Advocates (Remuneration) Order. The National Bank of Kenya Ltd opposed the application, arguing that an affidavit was mandatory. The court ruled that the Remuneration Order does not require an affidavit for such references and overruled the objection, allowing the application to proceed to a substantive hearing.
Tax Type
Taxation of legal costs under the Advocates (Remuneration) Order
Issues
The court considered whether the applicant was obligated to file an affidavit in support of their reference to the High Court under Rule 11(2) of the Advocates (Remuneration) Order. The applicant argued that the Remuneration Order is a complete code and that other procedural rules, such as Order 50 rule 7 of the Civil Procedure Rules, do not apply here. The court ruled that the Remuneration Order does not require an affidavit, thus allowing the reference to proceed without one.
Holdings
- The court overruled the objection that the applicant must file an affidavit in support of the reference under Rule 11(2) of the Advocates (Remuneration) Order, as the rule does not stipulate such a requirement. The court emphasized that compliance with the rule was achieved by setting out the grounds of objection, and it found no merit in the advocate's challenge.
- The court confirmed that the application for enlargement of time under the Remuneration Order should be governed by its own rules, not necessarily by the Civil Procedure Rules, unless there is an express conflict. The court directed that the application dated 9th September 2005 proceed to a substantive hearing on a mutually convenient date.
- The court acknowledged the legal principles from cited cases (KENTAINERS LIMITED v V.M. ASSANI and INTERMART MANUFACTURERS LIMITED v AKIBA BANK LIMITED) regarding the admissibility of evidence but held that these did not apply to the current reference, as the applicant was not in violation of any rules by omitting an affidavit.
Remedies
- The application is directed to proceed to a substantive hearing on a date mutually convenient to the court and the parties.
- The objection raised by the advocate is overruled with costs to the client.
Tax Issue Category
Other
Legal Principles
The court held that under Rule 11(2) of the Advocates (Remuneration) Order, an applicant is not required to file an affidavit in support of a reference challenging a taxing officer's decision. The ruling clarified that the Remuneration Order is a self-contained code governing advocate-client remuneration disputes, and procedural requirements from the Civil Procedure Rules (e.g., Order 50 rule 7) cannot be imported unless explicitly stipulated or necessary to address a void. The court emphasized that the absence of an affidavit does not invalidate a reference if the grounds of objection are sufficiently stated in the chamber summons.
Precedent Name
- INTERMART MANUFACTURERS LIMITED V. AKIBA BANK LIMITED & 2 OTHERS
- KENTAINERS LIMITED Vs V. M. ASSANI & 4 OTHERS
- SHAH & PAREKH V APPOLO INSURANCE Co. LIMITED
Cited Statute
- Advocates (Remuneration) Order
- Evidence Act
- Civil Procedure Rules
Judge Name
Fred A. Ochieng
Passage Text
- In my considered opinion, as there is no legal requirement for the applicant to file a supporting affidavit, this court would be wrong to fault it for not doing so... Accordingly, I find no merit in the objection raised by the advocate. It is therefore overruled, with costs to the client.
- "The application is not supported by an affidavit – at least there is none on file, and the Ruling outlining the reasons of the taxing master's decision has not been annexed. This is mandatory. Without the benefit of those reasons, I cannot make a fair determination of this matter. Accordingly, I will strike out this application as being incompetently before this court, with costs to the Respondent."
- Rule 11 (2) of the Remuneration Order states that an objector shall file his reference 'by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.' There is absolutely no requirement that the reference be supported by an affidavit. Therefore, I am unable to discern wherefrom the advocate derived the obligation that an applicant must file an affidavit in support of his application under Rule 11 (2) of the Remuneration Order.