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ELCDismissedNotice of Motion dated 26th August 2019· [2020] KEELC 522 (KLR)

Singh Gitau Advocates v City Finance Bank Limited [2020] KEELC 522 (KLR)

High Court of Kenya
19 November 2020
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed advocates cannot use review to fix their own drafting mistakes: interest on taxed costs runs from certification, not from when the bill was filed.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 26th August 2019 by James Gitau Singh, Advocate, seeking review of the judgment of 18th July 2019 so that the awarded advocate-client costs would attract interest from 25th March 2013, the date of filing the bill of costs, rather than from the date of certification. The application was brought under section 7 of the Advocates Remuneration Order, sections 1A, 1B, 3A, 26 and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, supported by the applicant's affidavit and opposed by the client, Jamii Bora Bank Limited, through the affidavit of Christine Wahome. Parties filed written submissions by consent. The applicant argued that a mistake by counsel fell within 'any sufficient reason' under Order 45 rule 1, that no prior demand for interest was required under rule 7 of the Remuneration Order, and that since fees were to be offset against rent due under a decree in HCCC No. 279 of 2013, interest should run from presentation of the bill. The respondent countered that the applicant had conceded seeking interest from 12th January 2017, that no error appeared on the face of the record, that no new matter had been discovered, and that the taxed amount plus interest had been paid in full in three instalments. The court, applying Muyodi vs ICDC as cited in Francis Njoroge vs Stephen Maina Kamere, held there was no error apparent on the face of the record, that interest properly ran from the date the Deputy Registrar certified the taxed costs, and that no new and important matter had been discovered since the rental suit was known to the advocate since 2013. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether there was an error apparent on the face of the record to warrant review under Order 45 rule 1

Holding

No; the court's award of interest from the date of certification of the taxed costs was correct and not an error warranting review

Reasoning

The applicant conceded that in the earlier application he erroneously sought interest from 12th January 2017 rather than 25th March 2013. The court, relying on Muyodi vs ICDC as cited in Francis Njoroge vs Stephen Maina Kamere, found that interest awarded from the date the Deputy Registrar certified the costs was correct. A mistake in the applicant's own application does not constitute an error on the face of the record of the impugned judgment.

p. 3
02

Whether discovery of new and important matter or other sufficient reason justified review, including the setoff claim

Holding

No; the existence of HCCC No. 279 of 2013 and the possibility of setoff were known to the advocate since 2013 and were never raised during taxation

Reasoning

The respondent instituted HCCC 279 of 2013 for rental arrears against the advocate, who was aware of it since 2013. The matter therefore did not qualify as newly discovered matter under Order 45 rule 1, and the advocate had raised no setoff at any point during the taxation proceedings.

p. 2

Legal principles established

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  • Interest on taxed advocate-client costs runs from the date the Deputy Registrar certifies the costs after taxation, and failure to award earlier interest is not an error apparent on the face of the record warranting review

Court orders

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  1. 1.The notice of motion dated 26th August 2019 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Advocates Remuneration OrderSection 7; Rule 7
  • Civil Procedure ActSections 1A, 1B, 3A, 26, 80
  • Civil Procedure RulesOrder 45 rules 1 and 2; Order 51 rule 1

Cases cited (11)

  • Belinda Murai & 6 Others vs Amos Wainaina
    [1976] KLR
  • Africa Kenya Ltd vs Put Sarajevo General Engineering Co Ltd & 2 Others
    [2018] eKLR
  • Paul Asin t/a Asin Supermarket vs Peter Mukembi
    [2013] eKLR
  • Philip Keipto Chemwolo & Another vs Augustine Kubende
    [1986] Eklr
  • Mburu Muthoka vs Chairman Kinangop Land Control Board Secretary LCB, Attorney General, Njunge Njenga
    [2004] eKLR
  • Njeri Onyango & Co. Advocates vs Ufundi Cooperative Society
    [2016] eKLR
  • Jackson Omwenga & Co. Advocates vs Everest Enterprises Ltd
    [2017] eKLR
  • Francis Njoroge vs Stephen Maina Kamere
    [2018] eKLR
  • Muyodi vs Industrial and Commercial Development Corporation & Another
    [2006] IEA 243
  • Pancras T. Swai vs Kenya Breweries Limited
    [2014] Eklr
  • D. Njogu vs Kenya National Capital Corporation
    [2006] eKLR
Jurisdiction invoked
Section 7 of the Advocates Remuneration Order; Sections 1A, 1B, 3A, 26 and 80 of the Civil Procedure Act; Order 45 rules 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules

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, "Singh Gitau Advocates v City Finance Bank Limited [2020] KEELC 522 (KLR)", Case Analysis (2020). Notice of Motion dated 26th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/522/eng@2020-11-19

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