Muiruri & Wachira Advocates v Nicola Farms Limited [2021] KEELC 296 (KLR)

The court had earlier held that the client's omnibus Notice of Objection to Taxation was fatally defective and that no Reference had been filed. Without a valid Notice of Objection, a Reference is a nullity. Further, judgment had been entered in terms of the certificate of taxation under Section 51(2) of the Advocates Act, so the certificate no longer existed to be challenged, and any Reference would invite the court to sit on appeal over its own judgment, contrary to public policy.

The taxation ruling of 25th February 2021 was self-contained and contained the reasons for taxation, so the client was obliged to file the Reference immediately upon receipt. The client knew of the ruling by 26th February 2021 yet only moved the court on 19th October 2021. The supporting affidavit gave no tenable reason for the roughly eight-month delay, so discretion could not be exercised in the client's favour.

Proof of substantial loss is the central condition for stay. The facts making the client suffer prejudice are solely within the client's peculiar knowledge, so under Section 112 of the Evidence Act the burden lay on the client, and only its duly authorised representative could swear to them. An advocate's affidavit cannot meet that evidentiary threshold, and no evidence of substantial loss was placed before the court.