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Court of AppealAllowedCivil Appeal No 133 of 2000· [2001] KECA 377 (KLR)

M.G. Sharma v Uhuru Highway Development Limited

Court of Appeal
16 February 2001
EGE. GicheruAAA. AkiwumiMKM.M.O. Keiwua
5,765 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed advocates can tax their bills of costs directly without first filing a lawsuit against the client.

What this practically means

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Executive summary

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The appellant advocate filed an itemised advocate-client bill of costs of Kshs 865,654,448 in Miscellaneous Civil Case No 81 of 1999 under rule 13 of the Advocates (Remuneration) Order for taxation as between advocate and client. The respondent applied, by Chamber Summons under Order VI rule 13(1) of the Civil Procedure Rules and sections 48 and 49 of the Advocates Act, to strike out the miscellaneous cause on the ground that the advocate should have commenced by plaint under section 48. O'Kubasu J struck out the cause with costs, holding that a plaint had to be filed before any bill of costs. The Court of Appeal unanimously allowed the appeal in three judgments. Gicheru JA held that sections 48 and 49 relate only to suits for recovery of costs, whereas the appellant was applying for taxation under rule 13, which is not in conflict with those sections. Akiwumi JA went further, holding that the judge had no jurisdiction at all to hear the striking-out application while taxation was pending before the taxing officer, rendering the ruling a nullity, a point the Court could take suo moto. Keiwua JA agreed the two provisions cannot conflict and that once the advocate proceeded by miscellaneous case under rule 13(3), no obligation to comply with section 48 arose. The court set aside the striking-out order, reinstated the bill of costs to proceed to taxation, and awarded the appellant the costs of the appeal and of the application in the superior court.

Key legal issues

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01

Scope of sections 48 and 49 of the Advocates Act

Holding

Those sections apply only to suits brought by an advocate for recovery of costs, not to an application for taxation of a bill of costs; section 48(1) requires only prior service of the bill, not its taxation, before a suit.

Reasoning

The court read the sections in full and noted their marginal note 'Action for recovery of costs'. The appellant's miscellaneous cause was not a suit for recovery of costs but an application for taxation under rule 13, whose objective is different. Section 49 only comes into play where a suit by plaint has already been filed and a defence disputing the bill is lodged. Taxation under rule 13 does not amount to a judgment.

p. 6
02

Conflict between rule 13 of the Advocates (Remuneration) Order and sections 48 and 49 of the Act

Holding

No conflict exists: rule 13 deals with taxation of costs as between advocate and client, while section 48 deals with recovery of costs.

Reasoning

Rule 13 was promulgated under the predecessor of section 44 of the Act and survived repeal by virtue of section 24 of the Interpretation and General Provisions Act. Its side note confirms its subject is taxation on the application of either party. Since the objectives of the two provisions differ, the judge erred in holding that no taxation could precede the institution of a recovery suit.

p. 9
03

Jurisdiction of the High Court judge over the striking-out application

Holding

The judge, not being seized of the taxation and there being no appeal or reference from the taxing officer before him, had no jurisdiction; his ruling was a nullity.

Reasoning

The application to strike out should have been heard by the taxing officer before whom taxation was pending, or the stay prayer first dealt with by the Deputy Registrar. Steps taken to place the file before the judge were ineffective to divest the Deputy Registrar of jurisdiction or confer it on the judge. The court may consider this fundamental jurisdictional defect suo moto.

p. 8

Legal principles established

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  • Sections 48 and 49 of the Advocates Act govern suits for recovery of costs by an advocate; they do not forbid or regulate taxation of a bill of costs before any such suit is instituted.
  • An advocate may legitimately apply for taxation of his bill of costs as between advocate and client under rule 13 of the Advocates (Remuneration) Order without filing a plaint, and that rule is not in conflict with sections 48 and 49 of the Act.
  • A High Court judge has no jurisdiction to entertain an application to strike out a miscellaneous cause for taxation while taxation is pending before the taxing officer, absent an appeal or reference under paragraphs 11 and 12 of the Remuneration Order; such proceedings are a nullity.
  • An advocate's bill of costs in respect of Court of Appeal matters may be included in a bill taxed in the superior court under rule 108 of the Court of Appeal Rules.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the superior court dated 19th May 2000 striking out Miscellaneous Civil Case No 81 of 1999 set aside
  3. 3.Miscellaneous Civil Case No 81 of 1999 reinstated and the bill of costs to proceed to taxation by the taxing officer/Deputy Registrar of the superior court
  4. 4.Costs of the appeal and of the application in the superior court awarded to the appellant
On appeal from
High Court of Kenya at Nairobi
HC Misc Case No 81 of 1999
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (no specific constitutional/statutory provision stated in the judgment)

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, "M.G. Sharma v Uhuru Highway Development Limited", Case Analysis (2001). Civil Appeal No 133 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/377/eng@2001-02-16

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