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ELCPartially AllowedNot stated in the judgment (Murang'a High Court, Miscellaneous Application)· [2021] KEELC 406 (KLR)

Njuguna & Partners Advocates v Wood Crest Investment Co Ltd & 2 others [2021] KEELC 406 (KLR)

High Court of Kenya
2 December 2021
3,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Murang'a court ordered clients to pay their advocate over Kshs. 2.2 million because they missed mandatory deadlines for challenging the legal fees bill.

What this practically means

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Executive summary

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Two opposed applications arose from an advocate-client bill of costs taxed on 24th May 2021 at Kshs. 2,209,351.40 in favour of the firm Njuguna & Partners Advocates, with a certificate of taxation issued on 12th August 2021. The clients, led by Patrick Waweru Maina, sought by a notice of motion dated 18th June 2021 to remove, quash and set aside the taxed bill and have it retaxed, alleging it was taxed on the higher side contrary to the Advocates Remuneration Order. The advocate opposed, citing non-compliance with Rule 11 and out-of-time filing, and cross-applied on 17th August 2021 under Section 51(2) of the Advocates Act for judgment on the certificate with interest at 14% per annum. The court found the reference incompetent: no Notice of Objection was filed as mandated by Rule 11, the reference came 28 days after the ruling with no explanation or application for extension, and the clients failed to demonstrate any error of principle or manifest excessiveness, nor did they attach the bill or pleadings to allow re-evaluation. Article 159(2)(d) could not be invoked to circumvent mandatory procedure. On the advocate's application, the court held that judgment under Section 51(2) may be entered unless the certificate is set aside or altered or the retainer is disputed; none of those conditions obtained, and the court (not a Deputy Registrar) has jurisdiction over such substantive applications. Judgment was entered for the advocate for Kshs. 2,209,351.40 with interest at 14% per annum from 12th August 2021 until payment in full, plus costs. The clients' reference was dismissed with costs.

Key legal issues

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01

Whether the clients' reference against the taxing master's decision was properly before the court

Holding

It was not; the clients failed to comply with Rule 11 - no Notice of Objection was filed and the reference was filed 28 days after the ruling without any application to enlarge time or explanation for delay.

Reasoning

Rule 11 prescribes a mandatory procedure: notice of objection within 14 days, reasons from the taxing officer, then a reference within 14 days of receipt of reasons. Article 159(2)(d) and the oxygen principle cannot be used to overthrow rules of procedure. The burden lay on the applicants to demonstrate error of principle or manifest excessiveness, which they failed to discharge.

p. 3
02

Whether judgment can be entered on the certificate of taxation under Section 51(2) of the Advocates Act

Holding

Yes; the certificate had not been set aside or altered and the retainer was not disputed, so judgment for the certified sum was properly entered.

Reasoning

Section 51(2) makes the certificate of the taxing officer final as to the amount covered unless set aside or altered by the court; where retainer is not disputed the court may order judgment for the sum certified. The reference having been dismissed, the certificate stood, and the court had jurisdiction to enter judgment notwithstanding the Deputy Registrar's lack of jurisdiction to hear such applications.

p. 4
03

Whether interest at 14% per annum was payable and from what date

Holding

Interest at 14% p.a. was payable, but from the date of the Certificate of Taxation (12th August 2021), not from delivery of the bill, since no claim for interest was proved to have been raised in the bill.

Reasoning

Rule 7 permits an advocate to charge interest at 14% per annum from expiry of one month from delivery of the bill, provided the claim for interest was raised before the bill is paid or tendered in full. The applicant gave no proof of raising a claim for interest in the bill of costs, and the court has discretion to fix the date interest becomes calculable.

p. 6

Legal principles established

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  • Compliance with Rule 11 of the Advocates Remuneration Order - notice of objection within 14 days and reference within 14 days of receipt of reasons - is a mandatory requirement.
  • Judgment under Section 51(2) of the Advocates Act may only be declined where the certificate of taxation has been set aside or altered or where the retainer is disputed.
  • An application under Section 51(2) of the Advocates Act is substantive and falls within the jurisdiction of a judge, not a Deputy Registrar.

Court orders

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  1. 1.The application dated 18th June 2021 is dismissed entirely with costs to the Respondent.
  2. 2.Judgment is entered for the Applicant (Advocate) against the Respondents for Kshs. 2,209,351/40/=.
  3. 3.Interest shall be paid at 14% p.a from 12th August 2021 till payment in full.
  4. 4.The Advocate will also have the costs of the application dated 17th August 2021.
Jurisdiction invoked
Advocates Act, Cap 16 Laws of Kenya and the Advocates Remuneration Order; Civil Procedure Rules Order 49 Rule 2 and Rule 7(1)

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, "Njuguna & Partners Advocates v Wood Crest Investment Co Ltd & 2 others [2021] KEELC 406 (KLR)", Case Analysis (2021). Not stated in the judgment (Murang'a High Court, Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/406/eng@2021-12-02

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