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ELCPartially AllowedNot stated in the judgment (Advocate/Client bill of costs miscellaneous application)· [2021] KEELC 1518 (KLR)

Muiruri & Wachira Advocates v Nicola Farms Limited [2021] KEELC 1518 (KLR)

Environment and Land Court
14 October 2021
4,727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed an advocate to convert a taxed bill of costs into a KES 4.99 million judgment with 14% interest, because the client never properly challenged the taxation.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Milimani (Oguttu Mboya J) determines two competing applications arising from the taxation of an advocate/client bill of costs. The Applicant, a firm of advocates instructed around 2016 to undertake conveyancing over L.R No. Nginda/Samar/Block 287, obtained a certificate of taxation dated 1st March 2021 certifying costs at Kes.4,999,281.92, and sought entry of judgment under section 51(2) of the Advocates Act with interest at 14% per annum. The Respondent, the client, sought a temporary injunction restraining proclamation, auction or sale of her property pending a reference against the taxing master's decision. The court framed five issues. It found the Respondent's application incompetent and stillborn: Order 22 Rule 51 & 52 objection proceedings are unavailable to a party in her own cause, and a temporary injunction under Order 40 requires a parent suit with a prayer for permanent injunction, none existing. The court further held it has no jurisdiction to enjoin execution of a lawful decree - the remedy is stay of execution - and that under Rule 11 of the Advocates Remuneration Order 2009 no reference need entertain Civil Procedure Rules. No reference had in fact been filed, only an omnibus notice of objection, so the certificate of taxation stands unvaried. With retainer undisputed and the three section 51(2) pre-conditions satisfied, judgment on the certificate was merited. The Respondent's application was dismissed with costs of Kes.10,000; the Applicant's application was allowed with costs of Kes.3,000.

Key legal issues

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01

Competency of the Respondent's application under Order 22 Rule 51 & 52 and Order 40

Holding

The application is incompetent and stillborn

Reasoning

Order 22 Rule 51 & 52 concerns objections to attachment by third-party objectors; no attachment of a third party's property existed, and the Respondent is a party to her own cause. Order 40 temporary injunctions presuppose a pending suit containing a prayer for permanent injunction; no such suit existed. Procedural technicality arguments cannot rescue an application vitiated at its core.

p. 4
02

Jurisdiction to enjoin execution of a decree

Holding

The court has no jurisdiction to grant a temporary injunction restraining execution of a lawful order or decree

Reasoning

The taxed certificate is not executable until judgment is entered; an aggrieved party may only seek stay of execution pending appeal or reference. The Advocates Remuneration Order 2009, particularly Rule 11, is a complete code governing objections and references, excluding reliance on the Civil Procedure Act and Rules.

p. 5
03

Whether a reference against the taxation exists

Holding

No reference has been filed; only an omnibus notice of objection to taxation dated 26th February 2021 exists

Reasoning

Despite averments that a reference was filed, none exists on record. The court cited Machira & Co Advocates v Arthur K Magugu, holding that vague notices not specifying items objected to are fatally defective, though it deferred a definitive ruling on whether the omnibus notice could anchor a valid reference.

p. 6
04

Status of the certificate of taxation

Holding

The certificate of taxation dated 1st March 2021 remains unimpeached and unvaried

Reasoning

A certificate is final as to quantum unless set aside or varied via a reference heard and determined by a judge. Since no reference was filed, let alone heard, there is no basis to disturb the certificate certifying Kes.4,999,281.92.

p. 6
05

Entitlement to judgment under section 51(2) of the Advocates Act

Holding

Judgment on the certificate of taxation is merited

Reasoning

Three pre-conditions must be met: existence of a certificate of taxation, absence of setting aside or variation, and no dispute as to retainer. All three are satisfied since the Respondent did not dispute retainer, having admitted instructing the Applicant for the conveyance on Nginda/Samar/Block 287.

p. 6

Legal principles established

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  • Judgment may be entered on a certificate of taxation under section 51(2) of the Advocates Act where there is a certificate of taxation not set aside or varied and no dispute as to retainer
  • A certificate of taxation cannot itself be executed; execution follows entry of judgment
  • An order of temporary injunction cannot restrain execution of a lawful court order or decree; the remedy is stay of execution
  • Order 22 Rule 51 & 52 objection proceedings are unavailable to a party to the proceedings in her own cause

Court orders

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  1. 1.The Notice of Motion Application dated 18th March 2021 is dismissed
  2. 2.Costs of the application dated 18th March 2021, assessed at Kes.10,000, awarded to the Applicant
  3. 3.The Applicant's Notice of Motion Application dated 17th March 2021 is allowed
  4. 4.Judgment entered for the Applicant against the Respondent for Kes.4,999,281.92 as per the certificate of taxation dated 1st March 2021
  5. 5.Interest on the certified costs at 14% per annum from 27th February 2021 until payment in full (as sought and allowed with the application)
  6. 6.Costs of the 17th March 2021 application assessed and certified at Kes.3,000 to be borne by the Respondent
Jurisdiction invoked
Advocates Act (Cap 16), Section 51(2), and the Advocates Remuneration Order, 2009; order of the court made on 1 July 2021 directing that the two applications be heard together

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, "Muiruri & Wachira Advocates v Nicola Farms Limited [2021] KEELC 1518 (KLR)", Case Analysis (2021). Not stated in the judgment (Advocate/Client bill of costs miscellaneous application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1518/eng@2021-10-14

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