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ELCAllowedELC Misc. Application (Advocate/Client Bill of Costs Reference), Mombasa· [2024] KEELC 764 (KLR)

V. Chokaa & Company Advocates v County Government of Mombasa as a Successor to Municipal Council of Mombasa (Environment and Land Miscellaneous Application E078 of 2022) [2024] KEELC 764 (KLR)

Environment and Land Court
21 February 2024
2,475 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 a Taxing Master cannot strike out an advocate's fee bill as time barred; limitation challenges must go to a judge with evidence.

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 ruling of 2nd August 2023, by which his advocate/client bill of costs dated 17th November 2022 against the County Government of Mombasa was struck out as time barred under section 4 of the Limitation of Actions Act, the Deputy Registrar upholding the respondent's preliminary objection dated 8th May 2023. The applicant argued that the Deputy Registrar lacked jurisdiction to determine an objection challenging his own jurisdiction to tax, and that a bill of costs under section 51(1) of the Advocates Act is not an action to which limitation applies. The respondent, through the County Attorney, opposed, contending the bill was filed outside six years of the end of the retainer (2007-2009) and that documents supporting the bill were never supplied. S. M. Kibunja J framed four issues and, relying on Abincha and Hezekiel Oira, held that section 13A of the Advocates (Remuneration) Order confines the taxing master to taxation of items in the bill; an objection to his jurisdiction, including a limitation defence, should have been referred to a judge. The court further held that a limitation defence requiring evidence of when the retainer was terminated could not succeed on a preliminary objection confined to pure points of law, and no evidence of termination was availed. Invoking Article 159(2)(d), the judge determined the objections himself rather than remitting, allowing the application, setting aside the ruling, rejecting both preliminary objections and the respondent's notice of motion, with costs to the applicant, and remitting the bill to the Taxing Master for further directions.

Key legal issues

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01

Whether the Deputy Registrar sitting as Taxing Master had jurisdiction to determine a preliminary objection that the bill of costs was statute time barred

Holding

The Taxing Master lacked jurisdiction; the objection should have been referred to a judge with the consent of both parties.

Reasoning

Section 13A of the Advocates (Remuneration) Order empowers the taxing master only to determine matters in dispute connected with the taxation of items in a bill of costs. Relying on Abincha and Hezekiel Oira, the court held that a challenge to the taxing master's jurisdiction, including a limitation defence, falls outside that power and is for a judge. The taxing master therefore acted without jurisdiction in upholding the preliminary objection.

p. 4
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 that the bill was time barred in the absence of evidence of the date the advocate/client relationship was terminated.

Reasoning

The respondent's case was that the retainer ended between 2007 and 2009, but no evidence of termination was availed. The objection was raised by notice of preliminary objection, a process confined to pure points of law, whereas determining limitation where the end of the retainer is disputed requires affidavit evidence. The applicant had documented outstanding fees in his letter of 20th May 2014 to the Transition Authority.

p. 5
03

Whether to remit the preliminary objection or determine it in the interest of expeditious justice

Holding

The court proceeded to determine the preliminary objection itself to avoid further delay, invoking Article 159(2)(d) of the Constitution.

Reasoning

Although the ordinary course would be to remit the bill to the Taxing Master, that would occasion delay as the Taxing Master would have to refer the same preliminary objection to a judge. Invoking the constitutional dictate of proportionate and expeditious justice under Article 159(2)(d), the judge determined the objection so taxation could proceed without undue delay.

p. 5

Legal principles established

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  • A taxing master's jurisdiction under section 13A of the Advocates (Remuneration) Order extends only to the taxation of items on a bill of costs and does not include jurisdiction to determine a preliminary objection challenging his jurisdiction to tax the bill, such as a limitation defence; such an issue should be referred to a judge.
  • A notice of preliminary objection is appropriate only for pure points of law that require no tender of evidence; a limitation defence requiring evidence of when the advocate/client relationship was terminated cannot be sustained on a preliminary objection alone.

Court orders

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  1. 1.The Respondent's preliminary objections dated 8th May 2023 and 30th November 2023 to the bill of costs dated 22nd November 2022, and notice of motion dated 29th June 2023 respectively, are without merit and are rejected
  2. 2.The Applicant's notice of motion dated the 30th August 2023 has merit and is allowed with costs
  3. 3.The Taxing Master ruling delivered on the 2nd August 2023 is hereby set aside
  4. 4.The Applicant's bill of costs dated the 17th November 2022, be placed before the Taxing Master for further directions

Authorities

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Legislation

  • Advocates Actsection 51(1)
  • Limitation of Actions Actsection 4(1)(a)
  • Advocates (Remuneration) Ordersection 13A
  • Advocates (Remuneration) Orderparagraph 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 under section 11 of the Advocates (Remuneration) Order against the Taxing Master's ruling; Article 159(2)(d) of the Constitution invoked on expeditious 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 E078 of 2022) [2024] KEELC 764 (KLR)", Case Analysis (2024). ELC Misc. Application (Advocate/Client Bill of Costs Reference), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/764/eng@2024-02-21

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