CM Advocates LLP v Cole (Suing as the Administrator of the Estate of Josephine Eleanor Moikobu)
The bottom line
#A Kenyan court dismissed a client's attempt to overturn a taxed legal fees bill because he used the wrong procedure and never signed the fee agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to entertain a notice of motion seeking to set aside a certificate of taxation
No - the prescribed route is a reference under Rule 11 of the Advocates Remuneration Order; the wrong procedure divests the court of jurisdiction.
The Advocates Remuneration Order is a self-contained code regulating taxation. Where the law prescribes the manner of challenging a decision, the litigant must comply with the designated process. Filing a notice of motion instead of lodging an objection to taxation and a reference vitiated the proceedings and divested the court of jurisdiction to interrogate the merits.
Whether the retainer agreement issue, not raised before the taxing officer, could be raised on the application
No - the court on a reference can only entertain issues ventilated before the Deputy Registrar; the retainer question was raised through the backdoor.
The Client was represented before the taxing officer and filed responses and submissions, but never raised the retainer question. Citing Showcase Properties and Konosi, the court held that the existence of a retainer is a matter for the taxing officer and cannot be introduced for the first time before the judge.
Whether a retainer agreement existed relating to ELC (OS) No. 190 of 2018
No - the Letter of Engagement of July 12, 2016 did not relate to the primary suit and was unsigned, contrary to Section 45(1) of the Advocates Act.
The scope of work in the impugned document concerned succession matters and a 2015 Nairobi City Council suit, not ELC No. 190 of 2018. Further, the document was never signed by the Client or an authorized representative, so even if it related to the primary suit it would not constitute a valid retainer agreement.
Legal principles established
#- The Advocates Remuneration Order is a self-contained code; a party aggrieved by a certificate of taxation must invoke Rule 11 by way of a reference, not a notice of motion to set aside.
- A court determining a reference cannot entertain issues, such as the existence of a retainer, that were not raised before the taxing officer.
- A valid retainer agreement under Section 45(1) of the Advocates Act must be in writing and signed by the client or his agent.
- Where a court lacks jurisdiction it must down tools and not proceed to the merits.
Court orders
#- 1.The Notice of Motion Application dated March 17, 2023 is dismissed with costs to the Advocate, to be agreed upon and/or taxed by the Taxing Officer of the Honourable Court.
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought contrary to Rule 11 of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CM Advocates LLP v Cole (Suing as the Administrator of the Estate of Josephine Eleanor Moikobu)", Case Analysis (2023). Environment and Land Miscellaneous Application E170 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19149/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.