Japhet Noti Charo v Joseph Kirimo Charo Shutu & 4 others [2017] KEELC 2934 (KLR)
The bottom line
#The High Court in Malindi dismissed a client's attempt to overturn a lawyer's Kshs. 1.8 million taxed fee bill because he missed the 14-day objection deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocates were properly on record without leave under Order 9 Rule 9
They were properly on record because no judgment had been passed when the notice of appointment was filed on 19th August 2016; the suit had only been dismissed for want of prosecution on 6th September 2013, which is not a judgment
Order 9 Rule 9 restricts change of advocates only 'after Judgement has been passed'. Relying on Black's Law Dictionary, Section 25 of the Civil Procedure Act and Ngome v Plantex, the court held that a judgment requires a determination of the issues in the proceeding. A dismissal for want of prosecution under Order 17 Rule 2 determines no issues, so the rule was inapplicable.
Whether the taxed bill of costs could be declared null and void
No. Any challenge to the taxation should have been made before the taxing master or via a Rule 11 reference; absent a reference the court cannot go behind the certificate of taxation
The applicant ought to have raised the questions of standing and audience when served with the bill of costs. The proper remedy is a reference under Rule 11 of the Advocates Remuneration Order within 14 days. Since no reference was filed and the taxing master's decision was not even annexed, the court could not inquire into matters allegedly not considered at taxation.
Whether Omagwa Angima & Co. Advocates acted without instructions such that there was a dispute as to retainer
No. The record showed the firm filed documents, including a replying affidavit sworn by the applicant, and the applicant did not allege lack of instructions; the partnership change to Omagwa Angima & Co. was explained
Although the applicant claimed the firm came 'from nowhere', he did not say he never instructed counsel. The firm filed a replying affidavit on his behalf in 2008, and the respondent explained that the original partnership dissolved and the succeeding firm continued on record until August 2009. Following Musyoka & Wambua v Rustam Hira, with no retainer dispute and the certificate unaltered, the taxation stands.
Legal principles established
#- A dismissal for want of prosecution is not a judgment for purposes of Order 9 Rule 9 of the Civil Procedure Rules, since it entails no determination of the issues before the court
- Where there is no dispute as to retainer and the certificate of taxation has not been set aside or altered, the court may enter judgment on the certificate of taxation
- Objections to a taxing officer's decision must be pursued by way of a reference under Rule 11 of the Advocates Remuneration Order within 14 days of the decision
Court orders
#- 1.The Applicant's notice of motion dated 1st August 2016 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Order 9 Rules 7 and 8 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japhet Noti Charo v Joseph Kirimo Charo Shutu & 4 others [2017] KEELC 2934 (KLR)", Case Analysis (2017). Malindi HCC Misc Suit No. 9A of 2010 (application dated 1st August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2934/eng@2017-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.