Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 22nd July, 2020 (arising from Kajiado ELC No. 548 of 2017)· [2021] KEELC 1017 (KLR)

Kenya Electricity Transmission Co Ltd v Hematies Investments Limited & another [2021] KEELC 1017 (KLR)

Environment and Land Court
10 November 2021
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The Applicant, through its advocate Jomo Nyaribo, moved the court by Notice of Motion dated 22nd July 2020 seeking enforcement of a Deed of Settlement dated 7th April 2017, adopted as a court order on 26th July 2017, arising from the settlement of Kajiado ELC No. 548 of 2017. Under Clauses 2 and 4 of the Deed, the Respondent (KETRACO) had agreed to settle the Applicant's legal fees and costs by 13th April 2017, with interest at 12% per annum in default. The Applicant filed an Advocate-Client Bill of Costs taxed at Kshs. 1,005,430. The Respondent opposed, contending it was never served with the Bill, was not a party to the taxation, had no advocate-client relationship with the Applicant's firm, and had already paid legal fees of Kshs. 1,252,632.20 and Kshs. 346,376. The court held that Clause 4's general reference to 'costs' covered both party-and-party and advocate-client costs, and that although the Respondent was not a client of the Applicant's advocates, it had accepted to settle those costs under the Deed. Having not challenged the certificate of taxation by way of a Reference under Paragraph 11 of the Advocates Remuneration Order, the certificate stood enforceable. The court allowed the application and ordered payment of Kshs. 1,005,430 with interest at 12% per annum from 13th April 2017, execution in default within sixty days, and costs of the application to the Respondent.

Key legal issues

#
01

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

Holding

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.

Reasoning

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.

p. 2
02

Whether the failure to challenge the certificate of taxation bars the Respondent's objection

Holding

Yes; the certificate of costs dated 26th November 2018 has neither been contested nor varied and therefore stands enforceable.

Reasoning

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.

p. 2

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. 1.An order directing the Respondent to pay the Applicant, through its advocates on record, the sum of Kshs. 1,005,430
  2. 2.Interest on that sum at the rate of 12% per annum from 13th April 2017 until payment in full
  3. 3.In default of payment within sixty (60) days from the date of the ruling, execution to issue forthwith
  4. 4.Costs of the application to be borne by the Respondent

Authorities

#

Legislation

  • Environment and Land Court ActSections 14, 19
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 26, 27, 28, 38, 63(e)
  • Advocates Remuneration OrderParagraph 11

Cases cited (2)

  • Twiga Motor Limited vs. Hon. Dalmas Otieno Anyango
    [2015] eKLR
  • Vishisht Talwar vs. Anthony Thuo Kanai t/a A. Thuo Kanai Advocates
    [2014] eKLR
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.