J.M. Njenga & Co Advocates v Monica Wambui Kamau & 4 others [2020] KEELC 623 (KLR)
The bottom line
#A Kenyan court struck out an advocate's bid to make a non-party pay legal fees, ruling a prior costs order from the main case was required first.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 50 of the Advocates Act permits the applicant to have a non-party deemed a client for taxation without a prior court order
No; the applicant should have obtained an order in the parent matter that its costs be borne by the intended 2nd respondent before invoking Section 50
Section 50(1) allows a person interested in property from which costs are payable to apply for taxation as if he were the party chargeable. Relying on Kamau Kuria & Company Advocates v Lucy Nyambura Kinyanjui, the court held that such relief requires a prior order in the substantive matter allocating costs. Since the applicant never obtained such an order in ELC Constitutional Petition No. 171 of 2016, Section 50 could not assist it, and the taxation court lacked competence to grant the orders sought.
Whether joinder of the intended 2nd respondent could be effected in the taxation proceedings
No; the joinder application should have been made in the parent matter under Order 1 of the Civil Procedure Rules
The court noted that although the intended 2nd respondent had an interest in the suit property and had undertaken to settle fees, joinder for purposes of the litigation is governed by Order 1 of the Civil Procedure Rules and must be sought in the substantive suit, not in a taxation application in the advocate/client reference.
Legal principles established
#- Under a contract of retainer only the client is liable to pay fees to the advocate retained (as stated in the cited authority)
- Where a party seeks that fees be borne by a non-chargeable party under Section 50 of the Advocates Act, an order of the court to that effect must first be obtained
Court orders
#- 1.The Notice of Motion dated 5th August 2020 is struck out with no order as to costs
- Jurisdiction invoked
- Sections 2 and 50(1) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J.M. Njenga & Co Advocates v Monica Wambui Kamau & 4 others [2020] KEELC 623 (KLR)", Case Analysis (2020). Advocate/Client Bill of Costs application - Notice of Motion dated 5th August 2020 (arising from Mombasa ELC Constitutional Petition 171 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/623/eng@2020-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.