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ELCAllowedELC Misc. Application (notice of motion dated 30th August 2023), Environment and Land Court, Mombasa· [2024] KEELC 757 (KLR)

V Chokaa & Company Advocates v County Government of Mombasa as a Successor to Municipal Council of Mombasa (Environment and Land Miscellaneous Application E082 of 2022) [2024] KEELC 757 (KLR)

Environment and Land Court
21 February 2024
SKS. M. Kibunja
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ruled an advocate can pursue unpaid fees from Mombasa County because a time-bar defence needs evidence, not just a technical objection.

What this practically means

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Executive summary

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Dr. Vincent Chokaa, advocate, applied by notice of motion dated 30th August 2023 to set aside the Taxing Master's decision striking out his advocate/client bill of costs of Kshs.627,515.90 against the County Government of Mombasa on a preliminary objection that it was time barred under section 4 of the Limitation of Actions Act. The applicant argued that the Deputy Registrar, sitting as Taxing Master, lacked jurisdiction to determine such an objection, which should have been referred to a judge. The respondent maintained the retainer ended in 2009 and the bill was filed outside six years, and that no instructions or pleadings accompanied the bill. The court framed four issues, including limitation, jurisdiction, and the setting aside threshold. Relying on Abincha & Company Advocates v Trident Insurance Company Limited and Hezekiel Oira v Kenya Broadcasting Corporation, the court held that section 13A of the Advocates (Remuneration) Order confines the taxing master's jurisdiction to the taxation of items in the bill and does not extend to challenges to his jurisdiction; the limitation issue was for a judge. It further held that a limitation defence requires evidence of the date the retainer was terminated, which a notice of preliminary objection cannot supply, and none was availed. Invoking Article 159(2)(d) to avoid further delay, the court itself rejected the preliminary objection, allowed the application with costs, set aside the Taxing Master's ruling of 2nd August 2023, and placed the bill of costs before the Taxing Master for further directions.

Key legal issues

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01

Jurisdiction of the Deputy Registrar as Taxing Master over a preliminary objection that the bill of costs is time barred

Holding

The Taxing Master acted without jurisdiction in entertaining the limitation-based preliminary objection; he ought to have referred it to a judge.

Reasoning

Section 13A of the Advocates (Remuneration) Order empowers the taxing master to determine 'any matter in dispute before him' only in relation to taxation of items in the bill. Following Abincha & Company Advocates v Trident Insurance and Hezekiel Oira v Kenya Broadcasting Corporation, the court agreed that a challenge to the taxing officer's jurisdiction, including a limitation bar, is an issue for a judge, to be referred with the parties' consent.

p. 5
02

Whether the bill of costs was time barred under section 4(1)(a) of the Limitation of Actions Act

Holding

No determination could be made on limitation without evidence of when the advocate/client relationship was terminated, which the respondent did not provide.

Reasoning

The taxing master himself noted the applicant had not brought evidence showing the end of the retainer. The court held evidence of the termination date is essential where disputed, and could not be tendered through a notice of preliminary objection. The applicant had documented outstanding fees in his letter of 20th May 2014 to the Transition Authority, corresponding to the bill amount.

p. 5
03

Court's own determination of the preliminary objection instead of remitting it

Holding

To avoid further delay, the court itself rejected the preliminary objection so taxation could proceed.

Reasoning

Remitting the bill to the Taxing Master would merely prolong the process, as the same preliminary objection would then be referred to a judge. Invoking Article 159(2)(d) on the expeditious disposal of matters, the court chose to determine the objection itself, rejecting it as without merit for lack of evidence of termination of the retainer.

p. 5

Legal principles established

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  • The taxing master's jurisdiction under section 13A of the Advocates (Remuneration) Order extends only to the taxation of items on the bill of costs and not to challenges to his own jurisdiction, such as a claim that the bill is statute barred; such an issue is for a judge.
  • A notice of preliminary objection is appropriate only for pure points of law requiring no evidence; a limitation defence requiring proof of the date of termination of the retainer cannot be determined on a preliminary objection without evidence.

Court orders

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  1. 1.The Respondent's preliminary objections dated 8th May 2023 to the bill of costs dated 10th November 2022 are without merit and are rejected
  2. 2.The Applicant's notice of motion dated the 30th August 2023 is allowed with costs
  3. 3.The Taxing Master's ruling delivered on the 2nd August 2023 is set aside
  4. 4.The Applicant's bill of costs dated the 10th November 2022 be placed before the Taxing Master for further directions

Authorities

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Legislation

  • Limitation of Actions Actsection 4, section 4(1)(a)
  • Advocates Actsection 51(1)
  • Advocates (Remuneration) Ordersection 13A, paragraph 11(1) and (2)
  • 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
  • Hezekiel Oira T/A H. Oira Advocate v Kenya Broadcasting Corporation
    [2015] eKLR
Jurisdiction invoked
Reference to a judge against a Taxing Master's decision under the Advocates Act and Advocates (Remuneration) Order; Article 159(2)(d) of the Constitution invoked

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 E082 of 2022) [2024] KEELC 757 (KLR)", Case Analysis (2024). ELC Misc. Application (notice of motion dated 30th August 2023), Environment and Land Court, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/757/eng@2024-02-21

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