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ELCPartially AllowedNot stated in the judgment as extracted· [2019] KEELC 305 (KLR)

Gathenji & Company Advocates v David N Thuku & another [2019] KEELC 305 (KLR)

High Court of Kenya
19 December 2019
1,344 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 allowed an advocate to collect Kshs. 685,462.54 in taxed fees with 14% interest, rejecting clients' last-minute attempt to challenge the taxation.

What this practically means

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Executive summary

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This ruling by Obaga J of the High Court at Nairobi disposed of two applications arising from a taxed advocate-client bill of costs. The Advocate, whose bill of costs dated 4 May 2016 was taxed and allowed at Kshs. 685,462.54 with a certificate of taxation issued on 15 February 2018, applied by notice of motion dated 12 March 2018 for judgment to be entered on the certificate with interest at 14% per annum. The Clients opposed, contending that they had sought reasons from the taxing officer but the court file went missing, delaying their reference, and that judgment could not be entered while a reference was pending. The court held that entry of judgment requires only proof of the certificate of taxation and an absence of dispute on retainer; a pending reference is not a bar as it does not operate as a stay. The retainer dispute had already been settled by a ruling of 13 June 2017, and what was pending was merely an application for enlargement of time, not a reference. Judgment was therefore entered for the Advocate with 14% interest. The Clients' own application dated 20 January 2019 sought a stay, enlargement of time to lodge a reference, and setting aside of items 1, 11, 23 and 47 of the taxation ruling. The court found the claim that the court file was missing contradicted by the record, no 14-day objection filed, and the combined application for enlargement of time and challenge to the taxing officer's decision improper. That application was dismissed with costs to the Advocate.

Key legal issues

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01

Whether judgment can be entered on a certificate of taxation notwithstanding a pending reference

Holding

Yes; entry of judgment requires only the certificate of taxation and no dispute on retainer. A pending reference is not a stay, and here the dispute on retainer had been settled by a ruling of 13 June 2017.

Reasoning

The court held that the Applicant needed only to show a certificate of taxation issued and no dispute on retainer. The retainer dispute had been settled by the court's ruling of 13 June 2017. What was pending was not a reference but an application for enlargement of time, which could not be treated as a reference because leave had not been granted.

p. 2
02

Whether time to lodge a reference should be enlarged

Holding

No. The claim that the court file was missing when the taxation ruling was delivered was contradicted by the record, and no objection was filed within 14 days.

Reasoning

The taxing officer had recorded in the court file that the ruling was delivered on 16 January 2018, undermining the claim that the file was missing. No objection indicating the items objected to was filed within 14 days, and the Applicants were found not candid about the reason for the delay in lodging the reference.

p. 2
03

Whether a reference lodged before leave to enlarge time is proper

Holding

No. Attacking the taxing officer's decision before leave is granted renders the application incompetent, and combining enlargement of time with a challenge to the taxation ruling is improper.

Reasoning

The Respondent argued, and the court accepted, that one cannot attack the decision of the taxing officer before leave to enlarge time is granted; even if time were enlarged, the reference would be incompetent and open to striking out. Following Eboso J in Purity Gathoni Githae, seeking enlargement of time and a challenge to the taxation decision in one application is inappropriate and against the law.

p. 2

Legal principles established

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  • Entry of judgment on a certificate of taxation only requires proof of the certificate and absence of a retainer dispute; a pending reference is not a bar as it does not operate as a stay
  • A party cannot attack the decision of a taxing officer before leave to enlarge time for filing a reference is granted
  • An application that simultaneously seeks enlargement of time and challenges the taxing officer's decision is inappropriate and against the law

Court orders

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  1. 1.Judgment entered on the Certificate of Taxation dated 15 February 2018 for the Applicant against the Respondents for Kshs. 685,462.54
  2. 2.Interest on the taxed costs at 14% per annum from the date of the Certificate of Taxation
  3. 3.The Respondents' application dated 20 January 2019 dismissed with costs to the Respondent/Advocate

Authorities

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Cases cited (4)

  • KTK Advocates Vs Baringo County Government
    (2017) eKLR
  • Njongoro & Co. Advocates Vs Dubai Bank Kenya Limited
    (2008) eKLR
  • Republic Vs City Council of Nairobi & another
    (2017) eKLR
  • Purity Gathoni Githae & Another Vs Excelo Structures Ltd & another
    (2018) eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court over advocate-client taxation references and entry of judgment on certificates of taxation (Advocate (Client) Costs jurisdiction; specific provision not cited in the ruling)

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, "Gathenji & Company Advocates v David N Thuku & another [2019] KEELC 305 (KLR)", Case Analysis (2019). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/305/eng@2019-12-19

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