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ELCPartially AllowedNot stated in judgment (ruling on applications dated 2nd June 2016 and 9th September 2016)· [2017] KEELC 2204 (KLR)

S. Gichuki Waigwa & Associates v Liam Telecommunications Ltd & 3 others [2017] KEELC 2204 (KLR)

High Court of Kenya
27 July 2017
773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court entered judgment of Kshs. 881,073.80 against clients who delayed too long to challenge their advocate's taxed fees, blaming their own lawyer.

What this practically means

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Executive summary

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This ruling by K. Bor, Judge, of the High Court at Nairobi, delivered on 27th July 2017, determines two competing applications arising from an advocate-client fee dispute. The Applicant advocate was instructed to act for the Respondents when Commercial Bank of Africa threatened to exercise its statutory power of sale over L.R. No. 1160/416 in Karen over a debt of Kshs. 25,220,242. Unpaid fees led to a bill of costs dated 12th May 2015, taxed at Kshs. 881,073.80 with a certificate of taxation issued on 18th May 2016. The Applicant applied on 2nd June 2016 for judgment on the certificate; the Respondents applied on 9th September 2016 for leave to object to the taxation out of time, seeking also stay of execution and priority of their application. The court found the Respondents knew of the taxation from May 2016, were notified of the outcome, made a part-settlement offer of Kshs. 300,000 by monthly instalments in July 2016, and took no further steps after its rejection, blaming their advocate for the delay. Holding that no plausible reason for the delay was given and that granting leave would not accord with the overriding objective of just and timely determination, the court dismissed the Respondents' application with costs and allowed the Applicant's application, entering judgment for Kshs. 881,073.80 pursuant to the certificate of taxation. Mr. Waigwa appeared for the Applicant; there was no appearance for the Respondents.

Key legal issues

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01

Whether leave should be granted to the Respondents to object to the taxation out of time

Holding

Leave refused; the Respondents knew of the taxed costs from May 2016, made a settlement offer in July 2016, and gave no plausible reason for the delay.

Reasoning

The court found the Respondents were notified of the taxation ruling by their advocates and directly of the outcome in May 2016. After their offer to pay Kshs. 300,000 in instalments was rejected on 2nd August 2016, they took no action until filing the application on 14th September 2016, almost four months after the offer. The court held that extension of time is discretionary and must accord with the overriding objective of just, expeditious and timely determination; no plausible explanation for the delay was offered, so the discretion could not be exercised in their favour.

p. 2
02

Whether judgment should be entered for the Applicant on the certificate of taxation

Holding

Judgment entered for the Applicant for the taxed sum of Kshs. 881,073.80 pursuant to the certificate of taxation dated 18th May 2016.

Reasoning

Having dismissed the Respondents' application for leave to object out of time, and there being no pending challenge to the taxation, the certificate of taxation stood unchallenged. The court found the Advocate had rendered services on the Respondents' instructions in the matter of the threatened sale of L.R. No. 1160/416 by Commercial Bank of Africa, and that the bill of costs had been taxed and allowed. Judgment pursuant to the certificate followed as the ordinary consequence.

p. 2

Legal principles established

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  • Extension of time to challenge a taxing master's decision requires a plausible reason for the delay; knowledge of the taxation and inaction disentitles a party to leave.
  • The overriding objective requires just determination of proceedings in a timely manner, which informs the exercise of discretion on extension of time.

Court orders

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  1. 1.The Respondents' application dated 9th September 2016 for leave to object to the taxation out of time is dismissed with costs to the Applicant
  2. 2.The Applicant's application dated 2nd June 2016 is allowed
  3. 3.Judgment is entered for the Applicant against the Respondents pursuant to the certificate of taxation dated 18th May 2016 (Kshs. 881,073.80)

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Advocate's Remuneration OrderNot specified
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and the Advocate's Remuneration Order

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, "S. Gichuki Waigwa & Associates v Liam Telecommunications Ltd & 3 others [2017] KEELC 2204 (KLR)", Case Analysis (2017). Not stated in judgment (ruling on applications dated 2nd June 2016 and 9th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2204/eng@2017-07-27

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