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ELCPartially AllowedChamber Summons dated 4/3/2021 and Notice of Motion dated 14/1/2021 (ruling)· [2021] KEELC 1276 (KLR)

Wanjiku & Wanjiku Associates v Manu Holdings Limited [2021] KEELC 1276 (KLR)

Environment and Land Court
25 October 2021
3,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to excuse a client's late objection to a lawyer's taxed bill and entered judgment for Kshs 878,235 against the client.

What this practically means

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Executive summary

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This ruling by Eboso J of the Environment and Land Court (delivered virtually at Thika on 25 October 2021) disposed of two parallel applications arising from the taxation of an advocate-client bill of costs drawn at Kshs 1,531,510. After an earlier ruling of 28/5/2020 remitted Item 1 (instruction fees) for taxation by a different taxing officer, Hon Barasa taxed Item 1 at Kshs 750,000 plus VAT, bringing the total award to Kshs 878,235. The client (Manu Holdings Limited) filed a reference by chamber summons dated 4/3/2021 seeking extension of time to file the reference and review of the taxation, arguing that the same taxing officer had re-taxed the bill, that the transaction never materialised, and that the increase in instruction fees was unjustified. The advocate (Wanjiku & Wanjiku Associates) opposed and separately sought adoption of the certificate of taxation as judgment under section 51(2) of the Advocates Act. The court held that no valid reference could be maintained without a valid notice of objection issued within 14 days; that seeking enlargement of time while canvassing an already-filed reference was an abuse of process; and that the client failed the Salat criteria for extension of time, having been served with the taxation notice, having skipped the taxation, and having advanced untruthful and non-candid grounds. The reference was declined, and the advocate's notice of motion dated 14/1/2021 was allowed in terms of prayer 1, adopting the taxed award of Kshs 878,235 as judgment. The client was ordered to bear the costs of both applications.

Key legal issues

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01

Competency of the reference under paragraph 11 of the Advocates (Remuneration) Order

Holding

The reference was incompetent: no valid notice of objection within 14 days, no prior application to enlarge time for the notice of objection, and no prayer in the application itself for such enlargement

Reasoning

The court interpreted paragraph 11 as requiring a notice of objection within 14 days of the decision and a reference within 14 days of receipt of reasons. The client's notice of objection dated 2/3/2021 came over three months after the ruling of 25/11/2020. Filing the reference and seeking enlargement while canvassing it was held to be an abuse of process; enlargement should be sought beforehand.

p. 3
02

Enlargement of time criteria

Holding

The client failed to satisfy the Salat criteria: no bona fide explanation for delay (its advocates were served with the taxation notice and elected not to attend), no candid or arguable grounds (blame on Hon Orago was untruthful; challenge to Items 2-27 was already foreclosed), and no demonstration of an error of principle

Reasoning

The record showed the taxation notice dated 5/10/2020 was received by the client's advocates on 6/10/2020 for taxation on 22/10/2020, which the client skipped. The impugned taxation was by Hon Barasa, not Hon Orago, who only signed the certificate. The client's lack of candour and failure to identify an error of principle defeated the plea.

p. 4
03

Adoption of the certificate of taxation as judgment

Holding

With the reference declined and no opposition to the advocate's motion, judgment was entered in terms of the certificate of taxation dated 8/12/2020 for Kshs 878,235

Reasoning

Section 51(2) of the Advocates Act mandates entry of judgment on a taxed bill where retainer is not in issue. The client's reference having failed, there was no impediment to adopting the taxing officer's award as a judgment of the court.

p. 4

Legal principles established

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  • A valid notice of objection is a precondition to a competent reference under paragraph 11 of the Advocates (Remuneration) Order
  • A party seeking enlargement of time must apply for it before filing the reference; filing first and inviting the court to enlarge time while canvassing the reference is an abuse of process
  • Principles governing extension of time as set out by the Supreme Court in Salat v IEBC apply to enlargement applications
  • Where retainer is not in issue, section 51(2) of the Advocates Act mandates entry of judgment as taxed

Court orders

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  1. 1.The client's chamber summons dated 4/3/2021 is declined
  2. 2.The advocate's notice of motion dated 14/1/2021 is allowed in terms of prayer 1 (adoption of the certificate of taxation dated 8/12/2020 as judgment of the court)
  3. 3.The client shall bear costs of the two applications
Jurisdiction invoked
Paragraph 11(4) of the Advocates (Remuneration) Order and Section 51(2) of the Advocates Act

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, "Wanjiku & Wanjiku Associates v Manu Holdings Limited [2021] KEELC 1276 (KLR)", Case Analysis (2021). Chamber Summons dated 4/3/2021 and Notice of Motion dated 14/1/2021 (ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1276/eng@2021-10-25

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