Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 260 of 2012· [2016] KECA 492 (KLR)

Ouma Njoga & Company Advocates v Kisumu Teachers Co-operative Savings & Credit Society Ltd

Court of Appeal
27 May 2016
2,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a client must prove any claim against their lawyer's taxed fees, and cannot skip the prescribed procedures.

What this practically means

#

Executive summary

#
The appellant, a firm of advocates, appealed against a ruling of the High Court at Kisumu (Nambuye, J) which allowed the respondent, its former client, to set off certified taxed costs of Kshs. 642,564.12 against a claim of Kshs. 3,611,928.00 allegedly paid to the appellant and unaccounted for, and ordered the appellant to refund Kshs. 2,969,364.00. The parties had earlier consented to consolidation of several miscellaneous causes and to judgment for the appellant for the total certified costs, with execution stayed pending determination of the set-off question. The Court of Appeal allowed the appeal. It held that the respondent had failed to raise its complaints of unaccounted-for payments during taxation before the Deputy Registrar, despite the power conferred on the taxing officer by paragraph 13A of the Advocates (Remuneration) Order; consequently the certificate of costs was final under section 51 of the Advocates Act. The Court further held that an application to compel delivery of an advocate's accounts under Order 52 rule 4 of the Civil Procedure Rules must be made by Originating Summons supported by affidavit, guaranteeing both parties a hearing. The Judge had misapprehended the record in finding that the appellant did not dispute the respondent's claim, and had wrongly based her decision on the overriding objective in section 1B CPA. A set off coupled with a claim for refund was, in substance, a counterclaim which the respondent had not proved. The Court set aside the ruling, dismissed the set-off limb of the respondent's application, and awarded the appellant the costs in the High Court and of the appeal.

Key legal issues

#
01

Whether the High Court could order set off and refund against certified taxed costs without the client proving its claim for unaccounted-for payments

Holding

The Judge fell into error in allowing the respondent's claim, which was in effect an unproved counterclaim, and in misapprehending that the appellant did not dispute the respondent's claim of Kshs. 3,611,928.00

Reasoning

There was material on record, including a replying affidavit sworn by Robert Ouma Njoga, showing that the appellant disputed the respondent's claim and asserted that it was owed fees, that payments could be reconciled against fee notes, and that some payments related to stamp duty. The Judge nonetheless found that the appellant did not dispute the claim of Kshs. 3,611,928.00, which was clearly not supportable. The Judge also misapprehended the appellant's complaint as purely procedural when the appellant disputed both procedure and liability. A set off asserted together with a claim for refund is for all purposes a counterclaim which must be proved.

p. 4
02

Whether the proper procedure for ordering delivery of an advocate's accounts under Order 52 rule 4 of the Civil Procedure Rules was followed

Holding

The correct route is an Originating Summons supported by affidavit under Order 52 rule 4, which guarantees both parties a hearing; the Judge based her decision on the overriding objective in section 1B CPA instead of the specific provisions

Reasoning

Rule 4 of Order 52 of the Civil Procedure Rules empowers the court, where the relationship of advocate and client exists or has existed, to order delivery of the advocate's cash account and payment or delivery up of money. Such an application must be by Originating Summons supported by affidavit, and both client and advocate would have an opportunity to be heard. The respondent did not invoke this procedure, and the Judge's reliance on the overriding objective could not cure that failure.

p. 4
03

Whether the Deputy Registrar had power to deal with the respondent's complaints about unaccounted-for payments during taxation

Holding

Paragraph 13A of the Advocates (Remuneration) Order conferred power on the Deputy Registrar to deal with such a complaint, and the respondent's failure to seize that opportunity left the certificate of taxation final under section 51 of the Advocates Act

Reasoning

When the bill of costs came up for taxation before the Deputy Registrar, the respondent did not pursue its complaints of payments made to the appellant that were unaccounted for. Paragraph 13A of the Advocates (Remuneration) Order empowered the taxing officer to summon and examine witnesses, administer oaths and direct production of documents for determination of any matter in dispute. Having failed to raise the complaint there, the respondent was bound by the certificate of costs, which under section 51 of the Advocates Act finally certified the amount payable.

p. 4
04

Whether reliance on the overriding objective in section 1B of the Civil Procedure Act could justify dispensing with the prescribed procedure

Holding

It could not; the Judge erred in invoking the overriding objective to allow a set off on points of procedure when the specific provisions of the Advocates Act and the Civil Procedure Rules governed

Reasoning

The learned Judge grounded her decision on the overriding objective in section 1B CPA, holding that technicality should not defeat speedy disposal. The Court of Appeal held this approach unsupportable: the appellant was not merely raising procedure but disputing liability, the respondent's claim was an unproved counterclaim, and the specific provisions of the Advocates (Remuneration) Order and Order 52 rule 4 governed the dispute. Expediency could not substitute for proof of the claim or for the prescribed procedure.

p. 3

Legal principles established

#
  • A certificate of costs issued by the Deputy Registrar under section 51 of the Advocates Act finally certifies the amount of costs payable by the client to the advocate
  • An application under Order 52 rule 4 of the Civil Procedure Rules for delivery of an advocate's cash account and payment or delivery up of money must be by Originating Summons supported by affidavit, with the parties having an opportunity to be heard
  • The taxing officer under paragraph 13A of the Advocates (Remuneration) Order has power to examine witnesses, administer oaths, direct production of documents and adopt such proceedings as may be necessary to determine disputes before him, including complaints of payments made to the advocate
  • A claim by a client against an advocate for refund of a larger sum, asserted by way of set off, is in effect a counterclaim which must be proved

Court orders

#
  1. 1.Appeal allowed
  2. 2.Ruling of the High Court delivered on 3rd February 2011 set aside
  3. 3.Substituted therewith an order dismissing the 2nd limb of prayer 4 of the respondent's notice of motion dated 2nd May 2011
  4. 4.Appellant to have costs of the proceedings in the High Court and the costs of the appeal
On appeal from
High Court of Kenya at Kisumu
H.C. Misc. Civil Application No. 150 of 2008
Jurisdiction invoked
First appeal against a ruling of the High Court in a matter arising from taxation of advocate/client costs under the Advocates Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ouma Njoga & Company Advocates v Kisumu Teachers Co-operative Savings & Credit Society Ltd", Case Analysis (2016). Civil Appeal No. 260 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/492/eng@2016-05-27

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