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ELCAllowedELC Misc. Application (Ref.) (not fully stated in judgment)· [2024] KEELC 614 (KLR)

V. Chokaa & Company Advocates v County Government of Mombasa as a Successor to Municipal Council of Mombasa (Environment and Land Miscellaneous Application E096 of 2022) [2024] KEELC 614 (KLR)

Environment and Land Court
14 February 2024
2,590 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 ruled that Taxing Masters cannot strike out advocates' fee bills on limitation grounds—the judge overturned the decision and sent the bill back for taxation.

What this practically means

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Executive summary

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The applicant advocate, Dr. Vincent Chokaa, filed a bill of costs dated 22nd November 2022 against the County Government of Mombasa for Kshs. 174,358.09 arising from instructions in respect of Municipal Council of Mombasa Block No. IMN/658. The respondent raised a preliminary objection that the bill was time barred under section 4 of the Limitation of Actions Act, having been filed more than six years after the end of the advocate/client relationship (retainer said to run 2007-2009). The Deputy Registrar, sitting as Taxing Master, upheld the preliminary objection and on 14th June 2023 struck out the bill of costs. The applicant moved by notice of motion dated 29th June 2023 to set aside that ruling, contending the Taxing Master lacked jurisdiction to determine the objection, which ought to have been referred to a judge. The court framed four issues: limitation, the Taxing Master's jurisdiction, the threshold for setting aside the ruling, and costs. Relying on Abincha & Company Advocates v Trident Insurance and Hezekiel Oira v KBC, the court held that a taxing master's jurisdiction under paragraph 13A of the Advocates (Remuneration) Order extends only to the taxation of items on a bill and does not cover objections challenging his jurisdiction, including limitation. Further, since the end of the retainer was disputed and unproved - the applicant had documented outstanding fees in a letter of 20th May 2014 - the limitation question required evidence and could not be resolved on a notice of preliminary objection. The court allowed the application, set aside the Taxing Master's ruling, rejected the respondent's preliminary objections, and remitted the bill of costs to the Taxing Master for further directions, with costs to the applicant.

Key legal issues

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01

Jurisdiction of the Deputy Registrar as Taxing Master over preliminary objections challenging limitation

Holding

The Taxing Master had no jurisdiction to entertain the respondent's preliminary objection on limitation; the issue should have been referred to the judge.

Reasoning

Section 13A of the Advocates (Remuneration) Order empowers the taxing master to determine only matters connected with the taxation of items in the bill of costs. Relying on Abincha & Company Advocates v Trident Insurance and Hezekiel Oira v KBC, the court held that a challenge to the taxing master's jurisdiction, including whether the bill is statute barred, is reserved to a judge and should be referred with the parties' consent.

p. 5
02

Whether the bill of costs was time barred under section 4 of the Limitation of Actions Act

Holding

No finding of limitation could be made because there was no evidence of when the advocate/client relationship terminated.

Reasoning

The retainer letters were from 2007-2009, but the applicant documented outstanding fees in a letter dated 20th May 2014 to the Transition Authority. Where termination of the retainer is disputed, the date of termination must be proved by evidence; a notice of preliminary objection is only for pure points of law and no such evidence was before the court. The bill was therefore not established to be time barred.

p. 5
03

Whether the court should itself determine the preliminary objection rather than remit the matter

Holding

In the interest of expeditious justice under Article 159(2)(d), the court determined the preliminary objections itself so the Taxing Master could proceed with taxation.

Reasoning

Remitting the bill would cause further delay, as the Taxing Master would then have to refer the same preliminary objection to a judge. Invoking the overriding objective under Article 159(2)(d) of the Constitution, the court elected to determine the limitation and jurisdiction questions itself and then remit the bill for taxation.

p. 5

Legal principles established

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  • A taxing master's jurisdiction under paragraph 13A of the Advocates (Remuneration) Order extends only to the taxation of items on the bill of costs and does not extend to determining a preliminary objection challenging the taxing master's jurisdiction to tax; such issues ought to be referred to a judge.
  • A finding that an advocate/client bill of costs is time barred requires evidence of the date of termination of the advocate/client relationship where that is disputed; such an issue cannot be decided on a notice of preliminary objection as a pure point of law.

Court orders

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  1. 1.The Respondent's preliminary objections dated 8th May 2023 and 30th November 2023 and the Notice of Motion dated 29th June 2023 respectively are without merit and are rejected
  2. 2.The Applicant's notice of motion dated the 29th June 2023 is allowed with costs
  3. 3.The Taxing Master's ruling delivered on the 14th June 2023 is set aside
  4. 4.The Applicant's bill of costs dated the 22nd November 2022 be placed before the Taxing Master for further directions

Authorities

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Legislation

  • Advocates Actsection 51(1)
  • Advocates (Remuneration) Ordersection/paragraph 13A
  • Advocates (Remuneration) Orderparagraph 11(1) and (2)
  • Limitation of Actions Actsection 4 (and 4(1)(a))
  • Civil Procedure RulesOrder 49 Rule 7(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • Abincha & Company Advocates v Trident Insurance Company Limited
    [2013] eKLR
  • V. Chokaa & Company Advocates v County Government of Mombasa ELC MISC. AAL. No. E016 of 2022
    ELC MISC. AAL. No. E016 of 2022
  • Hezekiel Oira T/A H. Oira Advocate v Kenya Broadcasting Corporation
    [2015] eKLR
Jurisdiction invoked
Reference against the Taxing Master's ruling under the Advocates (Remuneration) Order, in exercise of the High Court/ELC supervisory jurisdiction; Article 159(2)(d) invoked for substantive determination

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, "V. Chokaa & Company Advocates v County Government of Mombasa as a Successor to Municipal Council of Mombasa (Environment and Land Miscellaneous Application E096 of 2022) [2024] KEELC 614 (KLR)", Case Analysis (2024). ELC Misc. Application (Ref.) (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/614/eng@2024-02-14

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