Dipa Pulling v Suchan Investments Limited & 3 others [2021] KEELC 1452 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant established a case for a charging order under section 52 of the Advocates Act
A charging order was granted limited to the taxed costs for services rendered in this suit
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.
Whether the charge could secure costs from other suits (JR No. 129 of 2009 and Civil Appeal No. 46 of 2012)
Refused; charges for those suits can only be ordered in those cases
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.
Whether the retainer/incompetence objection should defeat the application
The court declined to determine the retainer issue, deferring it to the pending reference
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.
Legal principles established
#- 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
#- 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.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.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.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.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.Liberty to apply limited to issues relating to enforcement of the charge and the effect of the pending reference
- 7.Each party shall bear its own costs
- Jurisdiction invoked
- Section 52 of the Advocates Act, Chapter 16 Laws of Kenya (charging orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.