V Chokaa & Company Advocates v County Government of Mombasa as a Successor to Municipal Council of Mombasa (Environment and Land Miscellaneous Application E086 of 2022) [2024] KEELC 644 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a taxing master cannot strike out an advocate's fee bill on limitation grounds — that decision belongs to a judge.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the taxing master over a limitation-based preliminary objection
The Deputy Registrar, sitting as taxing master, had no jurisdiction to determine the preliminary objection that the bill of costs was time barred; the objection should have been referred to a judge.
Paragraph 13A of the Advocates (Remuneration) Order empowers the taxing master to determine only matters connected with taxation of items in the bill. An objection that the bill is statute-barred challenges whether there are costs due at all, which only a judge may determine, following Abincha and Hezekiel Oira.
Whether the bill of costs was time barred under section 4 of the Limitation of Actions Act
No finding that the bill was time barred could be made on a notice of preliminary objection because there was no evidence of when the advocate/client relationship was terminated.
The retainer was said to have run from 2007 to 2009, yet the applicant documented outstanding fees in a letter to the Transition Authority dated 20th May 2014. Since instructions were not disputed but the date of termination was, evidence was essential, and none was attached to the notice of preliminary objection.
Procedural route for objecting to a taxing master's decision
Paragraph 11 of the Advocates (Remuneration) Order applies to objections to taxation, not to an order striking out the entire bill before taxation.
The applicant was challenging the striking out of the whole bill for limitation, not specific items of taxation; the taxing master's jurisdiction to tax exists only where there is an established relationship and no dispute as to retainer.
Whether the court should remit the preliminary objection to the taxing master or determine it itself
In the interest of expeditious justice under Article 159(2)(d), the court determined the preliminary objection itself rather than remitting it, to avoid further delay.
Remitting would compel the taxing master to refer the same objection to a judge, causing delay. The court therefore resolved the objection and set aside the ruling.
Legal principles established
#- A taxing master's jurisdiction under paragraph 13A of the Advocates (Remuneration) Order relates only to the taxation of items in the bill of costs and does not extend to determining a preliminary objection challenging his own jurisdiction, e.g. on limitation; such an issue is for a judge.
- A notice of preliminary objection is appropriate only for pure points of law not requiring evidence; where termination of the advocate/client relationship is disputed, a finding on limitation requires affidavit evidence.
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 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 against a Taxing Master's ruling under section 11 of the Advocates (Remuneration) Order; Article 159(2)(d) of the Constitution invoked
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 E086 of 2022) [2024] KEELC 644 (KLR)", Case Analysis (2024). ELC MISC. Application (Notice of Motion dated 29th June 2023), ELC Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/644/eng@2024-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.