V Chokaa & Company Advocates v County Government of Mombasa as a Successor to Municipal Council of Mombasa (Environment and Land Miscellaneous Application E085 of 2022) [2024] KEELC 643 (KLR)
The bottom line
#A Kenyan court ruled that a taxing master cannot strike out a lawyer's bill of costs as time-barred — that decision belongs to a judge.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Taxing Master to determine a preliminary objection raising limitation
The Deputy Registrar sitting as Taxing Master had no jurisdiction to determine the respondent's preliminary objection challenging the bill of costs as time barred; that issue could only be determined by a judge.
Section 13A of the Advocates (Remuneration) Order empowers the taxing master to determine 'any matter in dispute before him' only in relation to the taxation of items in the bill of costs. Relying on Abincha & Company Advocates v Trident Insurance and Hezekiel Oira v Kenya Broadcasting Corporation, the court held that a challenge to the taxing master's own jurisdiction, including a limitation objection, falls outside that power and ought to have been referred to a judge with the parties' consent.
Whether the bill of costs was statute barred under section 4 of the Limitation of Actions Act
No finding of time-bar could be made on a preliminary objection because there was no evidence of when the advocate-client relationship was terminated.
Although the taxing master had found the last service was delivered in January 2011 and the bill filed in November 2022, the retainer between 2007 and 2009 was disputed and no evidence of its termination was availed. The respondent's objection was raised by way of notice of preliminary objection, which cannot accommodate affidavit evidence, so the essential factual basis for a limitation finding was absent.
Whether the court should remit the preliminary objection or determine it itself
In the interest of avoiding further delay, the court proceeded to determine the preliminary objection itself rather than remitting the bill to the Taxing Master for reference to a judge.
Remitting the bill would mean the Taxing Master would again need to refer the same preliminary objection to a judge, causing more delay. Guided by the overriding objective in Article 159(2)(d) of the Constitution, the judge determined the objection so that the Taxing Master could proceed with taxation.
Legal principles established
#- A taxing master's jurisdiction under section 13A of the Advocates (Remuneration) Order extends only to matters connected with the taxation of items in the bill of costs, and does not extend to determining objections challenging his own jurisdiction, such as limitation; such issues are for a judge.
- A preliminary objection must be a pure point of law requiring no evidence; where the determination of limitation turns on disputed evidence of when the advocate-client relationship was terminated, it cannot be sustained on a notice of preliminary objection.
- Where instructions are not disputed and there is no evidence of termination of the retainer, the court cannot assume the bill of costs was filed outside the limitation period.
Court orders
#- 1.The Respondent's preliminary objections dated 8th May 2023 and 30th November 2023 to the bill of costs dated 22nd November 2022, and the Notice of Motion dated 29th June 2023 respectively are without merit and are rejected
- 2.The Applicant's notice of motion dated the 29th June 2023 is allowed with costs
- 3.The Taxing Master's ruling delivered on the 14th June 2023 is set aside
- 4.The Applicant's bill of costs dated the 22nd November 2022 be placed before the Taxing Master for further directions
- Jurisdiction invoked
- Reference from the Taxing Master's decision under the Advocates (Remuneration) Order; the court invoked Article 159(2)(d) of the Constitution in determining the preliminary objection itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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 E085 of 2022) [2024] KEELC 643 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/643/eng@2024-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.