Sot Tea Growers Rural Co-operative Savings and Credit Co-operative Society Limited (Stegro Sacco) v Andrew Mengich t/a Mengich & Co Advocates [2021] KEELC 3119 (KLR)
The bottom line
#A Kenyan court confirmed that ignoring the strict 14-day deadline to challenge a taxed legal fee bill costs you the ability to dispute it.
What this practically means
#Executive summary
#Key legal issues
#Existence of a retainer between the Applicant and the Respondent advocate
A retainer existed by virtue of the Applicant's letter dated 28th April 2016 and special Board resolution appointing the Respondent to represent it in ELC No. 65 of 2015
The court perused the record and found that through a special Board resolution dated 30th April 2016 the Applicant resolved to appoint the Respondent to represent it in the suit to safeguard the interests of the society and its members, thereby creating a client-advocate relationship. The Respondent thus became entitled to an instruction fee the moment he was seized with the matter, and once he undertook steps in furtherance of those instructions he earned some instruction fee.
Whether the ruling on the Respondent's Bill of Costs could be set aside
The prayer to set aside the taxation ruling failed because the Applicant did not file a reference under paragraph 11 of the Advocates Remuneration Order within 14 days
Section 11 of the Advocates Remuneration Order requires an aggrieved party to give notice of objection within fourteen days and then apply to a judge by chamber summons. Article 159 of the Constitution cannot be used as a panacea for omissions in approaching the court. Having failed to file the appropriate reference against the decision of 26th June 2019, the Applicant could not circumvent the mandatory procedure by a fresh application.
Whether the conditions for stay of execution under Order 42 Rule 6 were satisfied
None of the three conditions was established: no substantial loss shown, the application was filed about six months after the ruling without explanation, and no security was offered
The Applicant was required to demonstrate the kind of substantial loss it would suffer if stay was not granted, not merely state that it would suffer loss. The impugned ruling was delivered on 26th June 2019 and the application filed on 9th January 2020, a period of about six months with no explanation, amounting to inordinate delay. The Respondent had not provided or intimated willingness to avail security for due performance of the decree.
Whether judgment could be entered against the Applicant on the certificate of costs
Since the certificate of costs had not been set aside, altered or stayed, the judgment entered against the Applicant stood
Under Section 51 of the Advocates Act the certificate of the taxing officer is final as to the amount of the costs covered unless set aside or altered by the Court, and judgment may be entered for the sum certified where the retainer is not disputed. Rule 7 of the Advocates Remuneration Order permits interest at 14% per annum on disbursements and costs from one month after delivery of the bill where the claim for interest was raised before payment or tender in full.
Legal principles established
#- An advocate becomes entitled to an instruction fee the moment he is instructed to sue or defend a suit, and the entitlement grows as the matter proceeds
- Any complaint about a decision of the taxing officer, whether on a point of law or on the taxation of any item, must be ventilated by way of a reference to a judge under paragraph 11 of the Advocates Remuneration Order
- A certificate of the taxing officer is final as to the amount of costs covered thereby unless set aside or altered by the Court
- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
Court orders
#- 1.The Applicant's Application dated the 9th January 2020 is dismissed with costs
- 2.Interim orders issued on the 15th January 2020 are set aside
- 3.The Respondent's application dated the 20th February 2020 is allowed as prayed with costs
- Jurisdiction invoked
- Sections 1A and 1B of the Civil Procedure Act, Section 51(2) of the Advocates Act, Order 22 Rule 25, Order 12 Rule 7, Order 51 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules, Rule 13(3) of the Advocates Remuneration Order and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sot Tea Growers Rural Co-operative Savings and Credit Co-operative Society Limited (Stegro Sacco) v Andrew Mengich t/a Mengich & Co Advocates [2021] KEELC 3119 (KLR)", Case Analysis (2021). Not stated in judgment (arising from parent matter ELC No. 65 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3119/eng@2021-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.