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ELCPartially Allowed· [2020] KEELC 143 (KLR)

Mwaniki Gitau & Co. Advocates v James Ndina Gitonga & another [2020] KEELC 143 (KLR)

High Court of Kenya
10 December 2020
1,308 words in judgment
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The bottom line

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A Kenyan court converted a law firm's taxed costs of Kshs. 659,203 into an enforceable judgment because the clients missed the 14-day deadline to object to the taxation.

What this practically means

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Executive summary

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The court determined two rival applications arising from the taxation of an advocate's Bill of Costs: the Advocates' Notice of Motion dated 23rd January 2020 seeking entry of judgment for taxed costs of Kshs. 659,203 plus 14% interest from 11th July 2019, and the Respondents' Chamber Summons dated 29th January 2020 under paragraph 11(2) of the Advocates Remuneration Order seeking to set aside the Deputy Registrar's taxation decision of 13th January 2020 on items 3 to 205 and on interest. The court framed two issues: whether the taxing officer's decision should be reviewed or set aside, and whether the taxed costs should be adopted as judgment. On the first, the court held that the Respondents filed their objection 16 days after the decision, outside the 14-day window, without any application to enlarge time under paragraph 11(4); they also failed to demonstrate an error of principle or that the fee was manifestly excessive, the threshold drawn from Republic v Ministry of Agriculture ex parte Muchiri W'Njuguna. The Chamber Summons was dismissed with costs. On the second issue, relying on section 51(2) of the Advocates Act and the undisputed retainer, the court entered judgment for Mwaniki Gitau & Company Advocates against James Ndina Gitonga and Chrispus Mbici Gakui for Kshs. 659,203 plus 14% interest from 11th July 2019 until payment in full. Judgment delivered at Kajiado on 10th December 2020 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the taxing officer's decision should be set aside under paragraph 11 of the Advocates Remuneration Order

Holding

The Chamber Summons was filed 16 days after the decision, out of the 14-day window, with no application to enlarge time, and no error of principle or manifest excess was shown; the decision was upheld and the application dismissed.

Reasoning

Paragraph 11 requires objection within 14 days and a chamber summons within 14 days of receipt of reasons. The Respondents received the ruling on 13th January 2020 and filed 16 days later without seeking enlargement of time under paragraph 11(4). On the merits, they also failed to demonstrate an error of principle or that the fee was manifestly excessive, the threshold set in the Muchiri W'Njuguna decision the court associated itself with.

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02

Whether the taxed costs should be adopted and entered as judgment

Holding

Yes. The retainer was not disputed and the certificate of taxation stood unaltered, so judgment was entered for Kshs. 659,203 plus 14% interest from 11th July 2019.

Reasoning

Under section 51(2) of the Advocates Act, the taxing officer's certificate is final as to the amount of costs unless set aside or altered by the Court, and where retainer is not disputed the Court may order judgment for the certified sum. Having upheld the taxation, the court found no reason to refuse entry of judgment and granted interest as sought.

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Legal principles established

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  • The court cannot interfere with a taxing officer's decision unless it is based on an error of principle or the fee awarded is manifestly excessive as to justify an inference of error of principle
  • A certificate of taxation is final as to the amount of costs unless set aside or altered by the Court, and where retainer is not disputed judgment may be entered for the sum certified

Court orders

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  1. 1.The Advocates/Applicant's Notice of Motion application dated the 23rd January, 2020 be and is hereby allowed.
  2. 2.The Respondents' Chamber Summons application dated the 29th January, 2020 be and is hereby dismissed with costs.
  3. 3.Judgement be and is hereby entered in favour of Mwaniki Gitau & Company Advocates as against James Ndina Gitonga & Chrispus Mbici Gakui for the sum of Kshs. 659,203 plus interest at 14% from 11th July, 2019 until payment in full.

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), (2), (3), (4)
  • Advocates ActSection 51(2)

Cases cited (1)

  • Republic v Ministry of Agriculture and 2 others: Exparte Muchiri W'Njuguna & others
    (2006) eKLR
Jurisdiction invoked
Advocates Act, section 51(2); Paragraph 11 of the Advocates Remuneration Order (reference from the Deputy Registrar/Taxing Officer)

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, "Mwaniki Gitau & Co. Advocates v James Ndina Gitonga & another [2020] KEELC 143 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/143/eng@2020-12-10

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