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ELCAllowedNotice of Motion dated 2/7/2017 (arising from advocate/client bill of costs taxed in Nairobi ELC No 708 of 2013 and No 878 of 2014)· [2018] KEELC 2173 (KLR)

Andrew Barney Khakula T/A J.S Khakula & Co Advocates v Tranquility Development Limited [2018] KEELC 2173 (KLR)

High Court of Kenya
27 July 2018
1,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts will convert a taxed advocate's fee certificate into an enforceable judgment unless the client has formally challenged it through the proper channels.

What this practically means

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Executive summary

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The applicant advocate, Andrew Barney Khakula t/a J S Khakula & Co. Advocates, moved the court by notice of motion dated 2/7/2017 seeking judgment against Tranquility Development Limited under Section 51(2) of the Advocates Act, pursuant to a certificate of taxation issued on 18/5/2016 in respect of an advocate/client bill of costs arising from two suits the respondent instructed him on (Nairobi ELC No 708 of 2013 and No 878 of 2014). The respondent opposed, contending that there was no resolution or signed document constituting a retainer for those two matters, that it intended to fraudulently be deprived of money without justifiable cause, and that an arguable appeal against the dismissal of its reference (in Milimani High Court Misc App No 267 of 2014, dismissed on 30/6/2017) was pending and would be rendered nugatory. The applicant submitted that a certificate of taxed costs not set aside, and an undisputed retainer, entitled him to judgment; retainer disputes fall to be dealt with before taxation. The court framed a single issue: whether the application satisfied the criteria for judgment on a certificate of costs under Section 51 of the Advocates Act. Applying Lubulellah & Associates and Omulele & Tollo, and noting the taxing officer had found services were offered, the court held that the record disclosed no reference, objection notice under Paragraph 11 of the Advocates Remuneration Order, stay order or leave to appeal, so nothing warranted withholding judgment. The application was allowed in terms of prayers 1 and 2, with costs to the applicant.

Key legal issues

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01

Whether judgment on a certificate of costs may be entered under Section 51(2) of the Advocates Act despite the respondent's claim that retainer was disputed and an appeal was pending

Holding

The criteria for entry of judgment under Section 51 of the Advocates Act were met; the absence of a reference, objection notice, stay order or leave to appeal on the record meant nothing warranted withholding judgment.

Reasoning

The taxing officer had taxed the bill and issued a certificate on 18/5/2016 which had not been set aside or altered. The retainer issue had been raised before the taxing officer and resolved in the applicant's favour. The court record disclosed no reference, appeal memorandum, objection notice under Paragraph 11 of the Advocates Remuneration Order, stay order or leave to appeal capable of withholding entry of judgment.

p. 2

Legal principles established

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  • A certificate of taxation is final as to the amount of costs unless set aside or altered by the court, and judgment may be entered where retainer is not disputed
  • A party disputing retainer must utilise the Paragraph 11 Advocates Remuneration Order mechanism; merely asserting lack of retainer cannot defeat entry of judgment

Court orders

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  1. 1.The Notice of Motion dated 2/7/2017 is allowed in terms of prayers 1 and 2 (judgment entered against the respondent as drawn in the certificate of taxation dated 18/5/2016)
  2. 2.The applicant shall have costs of the application

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Advocates ActSection 51
  • Advocates Remuneration OrderParagraph 11

Cases cited (9)

  • Lubulellah & Associates Advocates v N K Brothers Limited
    [2014] eKLR
  • Omulele & Tollo Advocates v Magnum Properties Limited
    [2016] eKLR
  • George Ndungu Kimani T/A Kimani & Co Advocates Vs Ronald Schaich
    (2013) eKLR
  • Kithi & Company Vs Menengai Downs Ltd
    (2015) eKLR
  • Njeru Nyaga & Co Advocates Vs George Ngure Kariuki
    (2014) eKLR
  • Omulele & Tollo Advocates Vs Mount Holdings Limited
    (2016) eKLR
  • Ahmednasir Abdikadir & Co Advocates V National Bank of Kenya Limited
    (2006) eKLR
  • E.W Njeru & Co Advocates Vs Zakhem Construction (K) Limited
    HC Misc of 2012 (Nairobi)
  • E.W Njeru Vs Zakhem Construction (K) Limited
    HC Misc 487 of 2012
Jurisdiction invoked
Section 51(2) of the Advocates Act

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, "Andrew Barney Khakula T/A J.S Khakula & Co Advocates v Tranquility Development Limited [2018] KEELC 2173 (KLR)", Case Analysis (2018). Notice of Motion dated 2/7/2017 (arising from advocate/client bill of costs taxed in Nairobi ELC No 708 of 2013 and No 878 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2173/eng@2018-07-27

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