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ELCPartially Allowed· [2022] KEELC 1345 (KLR)

Nanak Hospital Management Services Limited v Munene Wambugu and Kiplagat Advocates [2022] KEELC 1345 (KLR)

High Court of Kenya
23 February 2022
2,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court gave a client more time to challenge a Kshs 2.28 million taxed legal bill, ruling that his advocate's death excused the delay.

What this practically means

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Executive summary

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The High Court (Mogeni J) determined two competing applications arising from an advocate-client taxation. The respondent/applicant law firm, Munene Wambugu and Kiplagat Advocates, sought judgment under Section 51(2) of the Advocates Act for Kshs. 2,285,085.48 in certified taxed costs plus 14% interest from 1/09/2019, contending the client had willfully refused to pay despite reminders. The client, Dr. Janardan Dhayabhai Patel, opposed, asserting he had settled all fees and had filed a preliminary objection against the bill, and separately applied by Notice of Motion dated 26/10/2021 for stay of execution of the Senior Deputy Registrar's ruling of 5/03/2020 and leave to appeal out of time, explaining that his advocate Mr. Nyawara fell ill, died, and his file could only be recovered through the Deputy Registrar. The court held it had jurisdiction under Rules 11 and 12 of the Advocates (Remuneration) Order since an objection to the taxing officer's decision existed; that citing the wrong provisions and form was not fatal given Article 159(2)(d); and that the advocate's death excused the delay, applying Phillip Chemwolo v Augustine Kubede. The application for extension of time and stay was allowed, with the appeal to be lodged within 45 days, costs in the cause. The judgment-entry application was declared overtaken by events. The suit in substance partially succeeded on the client's application while the advocate's application failed.

Key legal issues

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01

Jurisdiction of the High Court judge over taxation disputes

Holding

The court has jurisdiction since an objection challenging the taxing officer's decision is on record, satisfying Rule 11

Reasoning

The court explained that a judge's jurisdiction on taxation is confined to two situations: a reference challenging the taxing officer's decision under Rule 11, or a reference by consent in the form of a case stated. Since an objection challenging the taxing officer's decision exists here, jurisdiction was settled.

p. 3
02

Effect of citing wrong legal provisions and wrong application form

Holding

Not fatal; the court applies Article 159(2)(d) and disregards the technical objection

Reasoning

Although the application should have been brought by Chamber Summons under paragraph 11(4) of the Advocates Remuneration Order rather than Order 51 Rule 4 of the Civil Procedure Rules, the court held that procedural technicalities should not bar justice and proceeded to determine the application on its merits.

p. 3
03

Extension of time and stay pending reference

Holding

Granted: the death of the advocate on record explained the delay and the court extended time by 45 days to lodge the appeal and stayed execution

Reasoning

The court accepted that the advocate's illness and death caused the failure to timeously file a reference, relying on Phillip Chemwolo v Augustine Kubede that a mistake should not deny a party a hearing on merit. Execution was imminent, warranting a stay.

p. 3

Legal principles established

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  • A judge's jurisdiction over taxation matters under the Advocates (Remuneration) Order arises on a reference under Rule 11 or by consent by way of case stated
  • Citing wrong provisions or wrong form of application is no longer fatal owing to Article 159(2)(d) of the Constitution
  • Death or indisposition of an advocate is an acceptable explanation for delay in filing a reference

Court orders

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  1. 1.Prayers 2, 3 and 4 of the application dated 26/10/2021 granted (stay of execution of the ruling of 5/03/2020, leave to appeal out of time, and the appeal deemed properly filed and served)
  2. 2.The applicant/respondent to lodge the appeal within 45 days
  3. 3.Costs of the application to be in the cause
  4. 4.The application dated 4/07/2021 declared overtaken by events

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Advocates Remuneration OrderParagraph 11(1), (2) and (4); Part I paragraph 7
  • Civil Procedure RulesOrder 51 Rule 4
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Phillip Chemwolo & Another v Augustine Kubede
    [1982-88] KLR 103
Jurisdiction invoked
Rules 11 and 12 of the Advocates (Remuneration) Order 1962; Section 51(2) of the Advocates Act

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, "Nanak Hospital Management Services Limited v Munene Wambugu and Kiplagat Advocates [2022] KEELC 1345 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1345/eng@2022-02-23

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