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ELCPartially AllowedNotice of motion dated 11/6/2020 (bill of costs filed 16/1/2017)· [2021] KEELC 4668 (KLR)

Odera Obar & Co Advocates v Jet Properties & Apartments Limited [2021] KEELC 4668 (KLR)

High Court of Kenya
21 January 2021
BEB M Eboso
1,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that advocates can charge 14% annual interest on unpaid legal fees if they served an itemized bill, waited a month, and demanded payment before the client paid.

What this practically means

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Executive summary

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The advocate, Odera Obar & Co Advocates, filed a bill of costs dated 16/1/2017 against its client, served on 24/1/2017, which was taxed on 13/5/2020 at Kshs 269,466.12. The advocate then moved the court by notice of motion dated 11/6/2020 seeking judgment for the taxed sum plus interest at 14% per annum from 24/2/2017 until payment in full. The application was served on 16/6/2020, and the client paid the taxed sum on 22/6/2020, leaving interest as the sole issue for determination. The client argued that the bill served was for taxation only and not a demand for payment; that under paragraph 7 of the Advocates (Remuneration) Order the advocate must make appropriate demand to trigger interest; and that in any event only court rates should apply. The court held that paragraph 7 requires three elements: service of an itemized bill, lapse of one month before the interest claim is raised, and non-payment of the bill amount when the claim is raised. All three were met, since payment came only after service of the application. The court rejected the argument that paragraph 7 contemplates two distinct bills, reasoning that the drafters would have said so expressly. Judgment was entered for the advocate with interest at 14% per annum on Kshs 267,466.12 from 24/2/2017 to 21/6/2020 inclusive, and the advocate was awarded costs of the application.

Key legal issues

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01

Entitlement to interest at 14% per annum under paragraph 7 of the Advocates (Remuneration) Order

Holding

The advocate satisfied all three elements of paragraph 7: an itemized bill was served on 24/1/2017, more than one month elapsed before the claim for interest was raised (the application of 11/6/2020, served 16/6/2020), and the amount had not been paid or tendered in full when the claim was raised (payment came only on 22/6/2020).

Reasoning

The court interpreted paragraph 7 as requiring proof of service of an itemized bill, lapse of one month before the interest claim was raised, and non-payment or non-tender of the bill amount at the time of the claim. On the undisputed chronology, the bill was served on 24/1/2017 and the client paid only after service of the application on 16/6/2020. The court rejected the client's argument that paragraph 7 refers to a separate demand bill distinct from the bill filed for taxation, holding the Order does not contemplate a multiplicity of bills for the same work.

p. 2

Legal principles established

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  • Three elements must be satisfied before a claim for interest on an advocate's costs is awarded under paragraph 7 of the Advocates (Remuneration) Order
  • Paragraph 7 of the Advocates (Remuneration) Order contemplates only one bill in relation to the same professional work; it does not distinguish between a bill for taxation and a bill demanding payment

Court orders

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  1. 1.Interest at 14% per annum on the sum of Kshs 267,466.12 from 24/2/2017 to 21/6/2020 inclusive
  2. 2.Judgment entered in favour of the advocate in terms of the finding
  3. 3.Costs of the application to the advocate

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 7

Cases cited (8)

  • Kethi & Co Advocates v Menengai Downs Limited
    Misc Application No 1069 of 2013
  • Muri Mwaniki Advocates v John Ngige
    Misc Case No 178 of 2013
  • Nyaunde Tuiyott & Co Advocates v African Merchant Assurance Co Limited
    Misc Civil Application No 78 of 2017
  • Odera Obar & Co Advocates v James Oudia
    Misc Civil Application No 163 of 2017
  • Waiganjo Wachira & Company Advocates v Pacis Insurance Company Limited
    Misc Application No 381 of 2017
  • Otieno Ragot and Co Advocates v Kenindia Assurance Co Limited
    Misc Cause No 78 of 2018
  • Otieno Ragot & Co Advocates v Kenya Airports Authority
    Misc Civil Application No 95 of 2011
  • D Njogu & Co Advocates v Kenya National Capital Corporation
    Nairobi HC Misc Application No 21 of 2005
Jurisdiction invoked
Advocates (Remuneration) Order, paragraph 7

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, "Odera Obar & Co Advocates v Jet Properties & Apartments Limited [2021] KEELC 4668 (KLR)", Case Analysis (2021). Notice of motion dated 11/6/2020 (bill of costs filed 16/1/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4668/eng@2021-01-21

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