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Court of AppealAllowedCivil Appeal 24 of 2017· [2022] KECA 887 (KLR)

Musembi Ndolo & Co. Advocates v Cannon Assurance (K) Ltd

Court of Appeal
28 April 2022
DMD. K. MusingaAMA. K. MurgorSKS. ole Kantai
1,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This appeal arose from a ruling of E. N. Maina, J. (26th February 2015) upholding a Taxing Officer's decision that the appellant advocate's bills of costs were statute barred under section 4(1)(a) of the Limitation of Actions Act. The respondent had instructed the appellant in April 2004 to act in the taxation of 157 bills of costs filed against it by Somaia, and subsequently to file an application (Misc. Civil Application No. 82 of 2005) to set aside warrants of attachment obtained by Somaia. That application, though filed in 2005, was only determined by Ali-Aroni, J. on 4th November 2011. The High Court had held the advocate's work was completed on 16th February 2005/2006 when the taxation ruling was delivered, and that bills filed on 20th July 2012 were time-barred. The Court of Appeal allowed the appeal on all grounds. It found the judge erred in holding that the appellant was not instructed to file the 2005 application, as the record showed the appellant filed it and it was supported by the respondent's Managing Director. On the main ground, the Court held the brief was only finalized on 4th November 2011, adopting Halsbury's principles that for continuous work by a solicitor, limitation runs from termination of the action or lawful ending of the retainer, and following Cherere, J.'s finding that time began to run on 4th November 2011. The bills filed about eight months later were therefore not statute barred. The Court set aside the High Court ruling and remitted the bills of costs in Misc. Applications Nos. 161-166 of 2012 to the Taxing Officer for taxation, with the respondent bearing the costs of the appeal and the Reference.

Key legal issues

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01

Whether the appellant was instructed to file Misc. Civil Application No. 82 of 2005

Holding

The judge erred; the record showed the application was filed by the appellant and supported by the respondent's Managing Director, confirming instructions.

Reasoning

The Court examined the record and found the application dated 19th October 2005 was filed by Musembi Ndolo & Company Advocates and supported by an affidavit of Julius Maina Mukoma, the respondent's Managing Director/CEO. This demonstrated the advocate-client instructions, contradicting the High Court's finding.

p. 3
02

Whether the appellant's bills of costs were statute barred under section 4(1)(a) of the Limitation of Actions Act

Holding

The bills were not statute barred; time began to run on 4th November 2011 when the application under the same brief was determined, and the bills filed on 20th July 2012 were within six years.

Reasoning

The Court held the initial instructions of 30th April 2004 encompassed the subsequent application to set aside warrants of attachment, which lingered until 4th November 2011. Relying on Halsbury's Laws of England and Cherere, J., time for claiming fees runs from completion of the work, not the taxation of Somaia's bills. The claim, founded on contract, was therefore within the six-year limitation period.

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Legal principles established

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  • For an advocate's claim for fees founded on contract, limitation runs for six years from the date the cause of action accrued, and where the retainer involves continuous work such as defending an action or application, time runs only from termination of the matter or lawful ending of the retainer.
  • A brief given to an advocate is finalized only when the last matter within it, including post-judgment applications filed under the same instructions, is determined; time for taxing the advocate's bill runs from that date.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of E. N. Maina, J. dated 26th February 2015 set aside
  3. 3.Substituted order directing that the appellant's bills of costs in Kisumu HCC Misc. Applications Nos. 161, 162, 163, 164, 165 and 166 all of 2012 be remitted to the Taxing Officer in the High Court at Kisumu for taxation
  4. 4.Respondent to bear the costs of the appeal and of the Reference in the High Court

Authorities

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Legislation

  • Advocates Actsection 51
  • Limitation of Actions Actsection 4(1)(a)

Cases cited (1)

  • Cannon Assurance K. Limited vs Musembi Ndolo & Company Advocates
    2018 eKLR

    That for purposes of claiming fees, time began to run on 4th November 2011.

On appeal from
High Court of Kenya at Kisumu
HCC Misc. No. 161 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court ruling (Advocates Act taxation reference appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Musembi Ndolo & Co. Advocates v Cannon Assurance (K) Ltd", Case Analysis (2022). Civil Appeal 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/887/eng@2022-04-28

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