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ELCPartially AllowedNotice of Motion dated 8th April 2021 in ELC Suit re L.R No. 209/1916/6· [2021] KEELC 1452 (KLR)

Dipa Pulling v Suchan Investments Limited & 3 others [2021] KEELC 1452 (KLR)

Environment and Land Court
12 October 2021
3,607 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Nairobi court allowed an advocate to secure Kshs 4.76 million in taxed fees by placing a charge on a client's land share, but only for that one case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (S. Okong'o, J) determines a Notice of Motion dated 8th April 2021 by Ms Virginia Wangui Shaw, advocate, seeking a charging order over the share of the deceased plaintiff, Dipa Pulling, in L.R No. 209/1916/6 to secure taxed costs of Kshs. 22,157,963.45 claimed for services rendered in this suit, JR No. 129 of 2009 and Civil Appeal No. 46 of 2012. The underlying suit had been determined on 21st November 2019 with a declaration of tenancy in common and directions for partition or sale. The estate opposed, arguing an agreement that the firm would be paid by the 2nd defendant, pending references against the taxation, prematurity, and incompetence for want of a retainer with the applicant personally, since instructions were issued to the firm of Ransley, Mc Vicker & Shaw Advocates. The court held that a charging order was justified under section 52 of the Advocates Act, since the plaintiff's interest in the suit property was preserved through the applicant's instrumentality and her bill of costs in this suit was taxed at Kshs. 4,757,963.45 without stay, review or setting aside. However, the charge was limited to costs in this suit only; charges for the related matters could only be made in those cases as this court was not seized of them. The retainer question was left to the pending reference. A charging order over the plaintiff's share and sale proceeds was granted, enforcement stayed for 180 days or until the reference is determined, sale of the property was not impeded, an injunction protecting the charge issued, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the applicant established a case for a charging order under section 52 of the Advocates Act

Holding

A charging order was granted limited to the taxed costs for services rendered in this suit

Reasoning

The court found it undisputed that the applicant was the sole surviving partner of the firm instructed by the plaintiff, that she prosecuted the suit to determination, and that the plaintiff's interest in the suit property was preserved through her instrumentality. The bill of costs was taxed at Kshs. 4,757,963.45 and the taxation had not been stayed, reviewed or set aside, so the amount was payable and chargeable.

p. 4
02

Whether the charge could secure costs from other suits (JR No. 129 of 2009 and Civil Appeal No. 46 of 2012)

Holding

Refused; charges for those suits can only be ordered in those cases

Reasoning

Section 52 limits a charge to property recovered or preserved through the advocate's instrumentality for taxed costs in reference to that suit or matter. This court is not seized of the related matters and cannot determine whether the suit property was recovered or preserved in them, so it declined to extend the charge to those fees.

p. 4
03

Whether the retainer/incompetence objection should defeat the application

Holding

The court declined to determine the retainer issue, deferring it to the pending reference

Reasoning

The court held that the question whether the applicant was instructed in her personal capacity or can claim the firm's fees in her own name would be determined in the reference against the taxation in ELC Misc. Case No. 50 of 2020. Determining it would amount to sitting on appeal against the taxing officer's decision, which was not before the court.

p. 4

Legal principles established

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  • Under section 52 of the Advocates Act, a charging order may only issue over property recovered or preserved through the advocate's instrumentality for taxed costs in reference to that suit or matter
  • A taxing officer's certificate of taxation that has not been stayed, reviewed or set aside remains payable

Court orders

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  1. 1.The share of the deceased plaintiff, Dipa Pulling in L.R No. 209/1916/6 and in the proceeds of sale thereof is charged in favour of Virginia Wangui Shaw advocate t/a Virginia Shaw & Company Advocates to secure Kshs. 4,757,963.45 being her taxed costs
  2. 2.The applicant shall not enforce the charge for 180 days or until the reference against the taxation in ELC Misc. Case No. 50 of 2020 is heard and determined, whichever is earlier
  3. 3.The charging order shall not stop the sale of the suit property pursuant to the judgment of 21st November 2019, save that Kshs. 4,757,963.45 shall be deducted from the plaintiff's share of sale proceeds and deposited in court pending further orders
  4. 4.An injunction restraining the legal representatives of the plaintiff from dealing with the plaintiff's share in the suit property or proceeds of sale in a manner likely to defeat the charging order
  5. 5.The charging order shall stand discharged or set aside if the estate settles the costs of Kshs. 4,757,963.45 or such costs as determined in the reference
  6. 6.Liberty to apply limited to issues relating to enforcement of the charge and the effect of the pending reference
  7. 7.Each party shall bear its own costs

Authorities

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Legislation

  • Advocates Act, Chapter 16 Laws of KenyaSection 52
Jurisdiction invoked
Section 52 of the Advocates Act, Chapter 16 Laws of Kenya (charging orders)

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, "Dipa Pulling v Suchan Investments Limited & 3 others [2021] KEELC 1452 (KLR)", Case Analysis (2021). Notice of Motion dated 8th April 2021 in ELC Suit re L.R No. 209/1916/6. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1452/eng@2021-10-12

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