Kenya Electricity Transmission Co Ltd v Hematies Investments Limited & another [2021] KEELC 1017 (KLR)
The bottom line
#A Kenyan court enforced a settlement deed requiring Mukin Limited to pay Kshs 1,005,430 in legal costs with 12% interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent, though not a client of the Applicant's advocates, is liable under the Deed of Settlement to pay the advocate-client costs
The Respondent is liable. Clause 4 of the Deed generally referred to 'costs', which covers both party-and-party and advocate-client costs, and the certificate of taxation was never contested or varied.
The court read Clauses 2 and 4 of the Deed of Settlement together and found them unambiguous. Clause 4's general reference to 'costs' was deduced to cover both party-and-party and advocate-to-client costs. Although the Respondent was not a client of the Applicant's advocates and was not a party to the taxation, it had accepted to settle the said costs under the Deed, adopted as a court order. Having failed to challenge the taxation by way of a Reference under Paragraph 11 of the Advocates Remuneration Order within time, the Respondent could not now resist enforcement.
Whether the failure to challenge the certificate of taxation bars the Respondent's objection
Yes; the certificate of costs dated 26th November 2018 has neither been contested nor varied and therefore stands enforceable.
The Advocates Remuneration Order provides the procedure by which an aggrieved party may challenge a taxation, including a 14-day notice of objection to the taxing officer. The Respondent claimed it was not a party to the taxation but never filed a Reference. Reliance was placed on Twiga Motors Ltd vs. Hon. Dalmas Otieno Anyango on the consequences of missing Rule 11 time limits. The unchallenged certificate therefore remained valid and enforceable against the Respondent under the Deed.
Legal principles established
#- A consent/deed of settlement adopted as an order of the court is binding and cannot be escaped unless first varied or vacated.
- An unchallenged certificate of taxation stands enforceable; an aggrieved party must follow Paragraph 11 of the Advocates Remuneration Order within the prescribed time limits.
Court orders
#- 1.An order directing the Respondent to pay the Applicant, through its advocates on record, the sum of Kshs. 1,005,430
- 2.Interest on that sum at the rate of 12% per annum from 13th April 2017 until payment in full
- 3.In default of payment within sixty (60) days from the date of the ruling, execution to issue forthwith
- 4.Costs of the application to be borne by the Respondent
- Jurisdiction invoked
- Sections 14 and 19 of the Environment and Land Court Act; Order 51(1) of the Civil Procedure Rules; Sections 1A, 1B, 3A, 26, 27, 28, 38 and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Co Ltd v Hematies Investments Limited & another [2021] KEELC 1017 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd July, 2020 (arising from Kajiado ELC No. 548 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1017/eng@2021-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.