Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMisc Application No E192 of 2021· [2023] KEELC 227 (KLR)

Anthony Burugu & Co Advocates v Konchelah & another (Miscellaneous Application E192 of 2021) [2023] KEELC 227 (KLR)

High Court of Kenya
24 January 2023
MMM.D. Mwangi
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Clients who miss the 30-day deadline to challenge a taxed advocate's bill risk immediate judgment for the full amount, as delay without explanation defeats extension of time.

What this practically means

#

Executive summary

#
The Advocate/Applicant filed an advocate-client bill of costs dated November 3, 2021, which was taxed at Kshs 489,179.03 by a ruling of May 4, 2022, with a certificate of taxation issued on June 20, 2022. He then moved under section 51(2) of the Advocates Act for entry of judgment against his former clients. The Clients/Respondents filed a chamber summons dated July 25, 2022 under rule 11(4) of the Advocates Remuneration Order seeking enlargement of the time fixed by rule 11(1) to object to the taxing officer's decision, contending the ruling was delivered in their absence and that they had not instructed the Advocate to appeal in ELC 659/2009. The court framed two issues: whether the clients had made a case for extension of time, and whether judgment should be entered for the Advocate. Applying the Salat principles, the court found the clients had not explained the delay between learning of the ruling and filing the application, that their advocates had attended court during the taxation proceedings, and that the delivery of the ruling had been posted on the judiciary e-portal. The extension application was disallowed with costs. On the second issue, relying on section 51(2) of the Advocates Act and the Kinagop Reliance and Lubulellah authorities, the court held the unchallenged certificate of taxation was final and entered judgment for the Advocate against the Clients/Respondents jointly and severally for Kshs 489,179.03, plus costs of the July 6, 2022 application. Judgment dated and delivered at Nairobi on January 24, 2023 by M.D. Mwangi, Judge.

Key legal issues

#
01

Whether the Respondents made a case for enlargement of time under rule 11(1) of the Advocates Remuneration Order

Holding

The application failed; the Respondents did not explain the delay between learning of the ruling on 23.6.2022 and filing the application, and their conduct showed no basis for the exercise of discretion

Reasoning

Applying the Salat principles, the court found the applicants bore the burden of explaining delay. Their advocates had attended court before the ruling, the delivery of the ruling was posted on the judiciary e-portal, and no explanation was given for the delay after service of the certificate of taxation. The discretion was therefore not exercised in their favour.

p. 5
02

Whether judgment should be entered for the Advocate per the certificate of taxation

Holding

Yes; the taxation was unchallenged and the certificate of taxation is final under section 51(2) of the Advocates Act

Reasoning

The bill was taxed at Kshs 489,179.03 and a certificate issued on 20th June 2022. The Respondents' window to object closed with the dismissal of their extension application. Citing KCB v Kinagop Reliance and Lubulellah & Associates, the court held that where the certificate is not set aside or altered, judgment must follow as of course.

Legal principles established

#
  • Extension of time is an equitable remedy available only to a deserving party who explains the delay
  • A certificate of taxation not set aside or altered is final as to the amount of costs recoverable
  • Where no reference against a taxing master's ruling is filed, the court need only enter judgment

Court orders

#
  1. 1.The Clients/Respondents' chamber summons application dated 25th July 2022 is disallowed with costs to the Advocate
  2. 2.Judgment entered in favour of the Advocate against the Clients/Respondents jointly and severally for the sum of Kshs 489,179.03/-
  3. 3.The Advocate shall have the costs of the application dated July 6, 2022

Authorities

#

Legislation

  • Advocates Act, Cap 16section 51(2)
  • Advocates Remuneration Orderrule 11(1), 11(2), 11(4)

Cases cited (3)

  • Salat –vs- Independent Electoral & Boundaries Commission and 7 others
    (2014)
  • Kenya Commercial Bank Ltd vs Kinagop Reliance Co. Ltd & Another
    (2011) eKLR
  • Lubulellah & Associates Advocates Vs N K Brothers Ltd
    (2014) eKLR
Jurisdiction invoked
Section 51(2) of the Advocates Act, Cap 16 and Rule 11(4) of the Advocates Remuneration Order

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Anthony Burugu & Co Advocates v Konchelah & another (Miscellaneous Application E192 of 2021) [2023] KEELC 227 (KLR)", Case Analysis (2023). Misc Application No E192 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/227/eng@2023-01-24

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