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ELCDismissedEnvironment & Land Case E052 of 2022· [2022] KEELC 15508 (KLR)

Homescope Properties Limited v George Ng'ang'a Mbugua t/a Mbugua Ng'ang'a & Co Advocates

Environment and Land Court
24 November 2022
LKL C Komingoi
2,420 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to excuse a client's 60-day delay in challenging a legal fees bill, confirming that advocates' retainers can be implied from conduct.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (LC Komingoi, J) determined a chamber summons dated March 14, 2022 brought by Homescope Properties Limited, the client, under Rules 11 and 12 of the Advocates Remuneration Order. The applicant sought enlargement of time to file a reference against the Deputy Registrar's taxation decision of November 30, 2021 on the advocate's advocate-client bill of costs, setting aside of that decision and taxation afresh, and a stay of execution of the certificate of costs. The applicant argued it had no knowledge of the underlying suit ELC 793 of 2013, that no instructions or board resolution established the retainer, and that the taxation was exparte and violated its right to be heard. The advocate respondent opposed, contending the application belonged in ELC Misc E103 of 2021, that the reference was filed out of the 14-day Rule 11 window without justification, and that a retainer was implied from the applicant's conduct, including its director executing an affidavit in the parent suit. The court framed three issues: extension of time and the reference, stay of execution, and costs. It found the delay of over sixty days from receipt of the taxing officer's letter of January 12, 2022 unexplained, declined to extend time, and declined to reach the merits, holding there was no valid reference. It agreed the application should have been filed in ELC Misc E103 of 2021, calling the separate filing an abuse of process. It found the retainer established by conduct. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Extension of time to file a reference under Rule 11 of the Advocates Remuneration Order

Holding

Extension refused because the delay of over 60 days from receipt of reasons was unexplained

Reasoning

The applicant was aware of the ruling, having written to the taxing officer on February 12, 2021, and received the Deputy Registrar's letter of January 12, 2022 explaining that reasons were contained in the ruling. The supporting affidavit did not address the delay from January 12, 2022 to March 14, 2022. Following Governors Balloon Safaris and Twiga Motors, the delay rendered the reference incompetent.

02

Existence of an advocate-client relationship

Holding

The court found the Respondent was retained by the Applicant, retainer implied from conduct

Reasoning

Mr Mohammed Ahmed executed an affidavit in a notice of motion filed in ELC 793 of 2013 where the Respondent acted as advocate for the Applicant as 1st Plaintiff, allowing the Respondent to participate without objection. Applying Ochieng, Onyango, Kibet & Ohaga v Akiba Bank, retainer may be implied from conduct; the Applicant could not deny the relationship.

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Correct file for the application

Holding

The application ought to have been filed in ELC Misc E103 of 2021 where taxation was done; filing separately was an abuse of process

Reasoning

The Respondent submitted the application was misconceived as it should have been made in ELC Misc E103 of 2021 where the taxation occurred. The court agreed, finding the separate filing an abuse of the court process.

p. 5

Legal principles established

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  • Delay in filing a reference under Rule 11 must be explained; unexplained delay disentitles the applicant to extension of time
  • A retainer of an advocate may be implied from the conduct of the client without written authority

Court orders

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  1. 1.The chamber summons dated March 14, 2022 is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), 11(2), 11(3), 11(4), 11(5)
  • Advocates Remuneration OrderRule 12

Cases cited (15)

  • Labh Singh Harman Singh Ltd v Attorney General & 2 Others
    [2016] e KLR
  • Rocky Driving School v Cute Kitchen Ltd
    [2015] e KLR
  • Kenya National Highways Authority v Ahmed Nassir Maalim Abdullahi
    [2020] e KLR
  • Richard Nchapi Leiyagu v IEBC & 2 Others
  • George Kagima Kariuki & 2 Others v George M Gichimu and 2 Others
    [2014] e KLR

    Delay must be explained; plausible and satisfactory explanation unlocks the court's discretion

  • Stanley Kahoro Mwangi & 2 Others v Kanyamwi Trading Company Ltd
    [2013] e KLR
  • Chairman Constituency Development Fund Suna East Constituency (CDF) & another v Jambo Construction Ltd
    [2022] e KLR
  • Joreth Ltd v Kigano & Associates
    [2002] EA 92
  • IEBC v John Omollo Nyakongo t/a HR Ganijee & Sons
    [2020] e KLR
  • Governors Balloon Safaris Ltd v Skyship Company Ltd
    [2015] e KLR

    Delay of 48 days after taxation ruling rendered reference fatally defective

  • Evans Thiga Gatumu v Kenya Commercial Bank Limited
    [2012] e KLR
  • Twiga Motors Limited v Hon Dalmas Otieno Onyango
    [2015] e KLR

    Failure to adhere to Rule 11 timelines renders application incompetent

  • Ochieng, Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited
    [2007] e KLR

    Retainer may be implied from the conduct of the client

  • Otieno Amisi & Co Advocates v Africa Merchant Insurance Co Ltd
    [2018] e KLR
  • Machira & Co Advocates v Arthur K Magugu & Another
    [2012] e KLR
Jurisdiction invoked
Rule 11 and 12 of the Advocates Remuneration Order

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, "Homescope Properties Limited v George Ng'ang'a Mbugua t/a Mbugua Ng'ang'a & Co Advocates", Case Analysis (2022). Environment & Land Case E052 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15508/eng@2022-11-24

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