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ELCDismissedMiscellaneous Application (advocate-client bill of costs; applications Nos. 79 and 80 of 2019 referred to)· [2021] KEELC 4311 (KLR)

Tariq Khan & Associates Advocates v Mohamed Ali Yusuf Ali [2021] KEELC 4311 (KLR)

Environment and Land Court
1 February 2021
1,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a client's attempt to overturn a taxed legal fee bill, holding that missed deadlines and missing evidence of payment sink such challenges in Kenya.

What this practically means

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Executive summary

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This is a first-instance ruling by the Environment and Land Court at Nairobi (K. Bor, J) on an application dated 14/5/2019 filed by the Client (Respondent) against his former Advocate (Applicant) after the Deputy Registrar taxed two advocate-client bills of costs - one for defending ELC Milimani No. 23 of 2014 (taxed at Kshs. 1,812,662.40) and one for a conveyancing transaction (taxed at Kshs. 193,258.80). The Respondent sought stay of execution, enlargement of time to file a reference out of time, release of client documents including the original title to Westlands Business Park, setting aside of the taxation and remission to a different taxing master, settlement of accounts crediting an alleged Kshs. 5,000,000 global payment, and consolidation of the two miscellaneous causes. The Applicant opposed, arguing inordinate and unexplained delay contrary to Rule 11 of the Advocates Remuneration Order, want of evidence for the alleged payment, and that the documents demanded related to a distinct transaction and entity. The court found the Respondent had been accorded ample opportunity to challenge the bill, filed submissions late and in the wrong file, gave no reasons for the delay, produced no proof of the alleged payment, and had not appealed the taxing master's order striking out consolidation. The application was dismissed in its entirety with costs to the Applicant, delivered on 1st February 2021.

Key legal issues

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01

Whether enlargement of time to file a reference against a taxation ruling should be granted

Holding

Refused - the Respondent gave no reasons for the inordinate delay of about five months and had already been accorded ample opportunity to challenge the bill

Reasoning

The court weighed the length of and reasons for delay, the chances of success of the reference and prejudice. The Respondent filed submissions on the taxation date and in the wrong file, requested no reasons on the record, and produced no evidence of the alleged Kshs. 5,000,000 payment. The discretion was therefore not deserved.

p. 2
02

Whether the two bills of costs should be consolidated and taxed as one

Holding

Refused - the consolidation question had already been determined by the taxing master, whose order striking out the consolidation application was not appealed

Reasoning

The Respondent's application for consolidation had been struck out by the taxing master. Absent an appeal against that order, the court could not revisit the same issue, and the duplication claim was an attempt to circumvent the taxing master's decision.

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Whether the claimed Kshs. 5,000,000 global payment should be taken into account in settling accounts

Holding

Refused - the claim was unsupported by any documentary evidence such as cheques or bank statements

Reasoning

The Respondent deponed to a negotiated global payment but annexed no proof, and there was no evidence of any agreement on a global sum. The court could not act on bare assertion in setting off sums against the taxed costs.

p. 1

Legal principles established

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  • An aggrieved party objecting to a taxing officer's decision must give notice of objection within 14 days under Rule 11 of the Advocates Remuneration Order, and unexplained inordinate delay disentitles the party to enlargement of time
  • A party seeking to challenge a taxation must demonstrate the grounds of objection and support them with evidence; failure to participate in the taxation cannot be cured on reference

Court orders

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  1. 1.The orders sought in the application dated 14/5/2019 are declined
  2. 2.The Applicant is granted the costs of the application

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11
  • Advocates Remuneration OrderParagraph 68A
  • Advocates ActSection 48
  • Oaths and Statutory Declarations ActSection 4
Jurisdiction invoked
Inherent jurisdiction over advocate-client taxation under the Advocates Act and Advocates Remuneration Order (Rule 11)

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, "Tariq Khan & Associates Advocates v Mohamed Ali Yusuf Ali [2021] KEELC 4311 (KLR)", Case Analysis (2021). Miscellaneous Application (advocate-client bill of costs; applications Nos. 79 and 80 of 2019 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4311/eng@2021-02-01

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