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ELCPartially Allowed· [2024] KEELC 1183 (KLR)

B.M. Mung’ata & Co. Advocates v Seke (Environment and Land Miscellaneous Application 6 of 2021) [2024] KEELC 1183 (KLR)

High Court of Kenya
5 March 2024
2,383 words in judgment
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The bottom line

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The High Court entered judgment for an advocate's Kshs 2.3 million taxed costs after the client failed to explain a 116-day delay in objecting to the taxation.

What this practically means

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Executive summary

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The High Court at Machakos (Christine Ochieng, Judge) determined two competing applications arising from a taxation of the Advocate-client Bill of Costs at Kshs 2,298,963.50 on 23rd May 2023. The Advocate, by Notice of Motion dated 11th July 2023, sought judgment and decree for the taxed costs. The Client, by Chamber Summons dated 18th September 2023, sought enlargement of time to lodge an objection under Rule 11 of the Advocates Remuneration Order and a stay of execution, alleging he had been ailing since May 2023 and only obtained the ruling after the objection period lapsed. The court framed two issues: whether time should be enlarged, and whether judgment should be entered for the taxed costs. On the first, applying the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla, the court held that extension of time is an equitable, discretionary remedy and the applicant bears the burden of explaining delay. The Client's advocate was present at delivery of the ruling, no medical reports were annexed, and the application appeared filed only after service of the Advocate's application; the 116-day delay was inordinate and inexcusable, and enlargement was refused. On the second issue, the court invoked section 51(2) of the Advocates Act and section 3A of the Civil Procedure Act, holding it had inherent power to enter judgment on the Certificate of Taxation, following Lubulellah & Associates Advocates v N.K. Brothers Limited. The Chamber Summons was dismissed with costs; judgment was entered for the Advocate for Kshs 2,298,963.50 and costs of both applications awarded to the Advocate.

Key legal issues

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01

Whether time should be enlarged to allow the Client to file an objection to the Taxing Officer's decision

Holding

Enlargement of time refused; the Client failed to discharge the burden of explaining the 116-day delay, produced no medical reports and did not state when he learned of the taxation outcome.

Reasoning

Applying the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla, the court noted extension of time is discretionary and equitable, requiring a satisfactory explanation for the delay and absence of prejudice. The Client's advocate was present when the ruling was delivered, no medical evidence was annexed, and the application appeared filed only after the Advocate moved for judgment, making the delay inordinate and inexcusable.

p. 4
02

Whether judgment should be entered for the Advocate for the taxed costs

Holding

Application allowed; under section 51(2) of the Advocates Act the Certificate of Taxation is final unless set aside, and judgment was entered for Kshs 2,298,963.50.

Reasoning

The court invoked section 51(2) of the Advocates Act and section 3A of the Civil Procedure Act, holding the court has inherent power to enter judgment on a taxed certificate where the retainer is not disputed and no reference is pending. Relying on Lubulellah & Associates Advocates v N.K. Brothers Limited, no further action is required of the court once costs are taxed and certified save to enter judgment.

p. 5

Legal principles established

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  • Once costs are taxed and a Certificate of Costs issued with no pending reference, the certificate should be entered as judgment under section 51(2) of the Advocates Act.
  • Extension of time is an equitable remedy available only to a deserving party, and the applicant bears the burden of explaining the delay.

Court orders

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  1. 1.Judgment entered against the Respondent (Client) for Kshs 2,298,963.50 being the taxed and certified costs payable to the Applicant
  2. 2.Costs of the two Applications awarded to the Advocate

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), (2), (3), (4)
  • Advocates ActSection 51(2)
  • Civil Procedure ActSection 3A

Cases cited (13)

  • Musyoka & Wambua Advocates v Rustam Hira Advocate
    (2006) eKLR
  • Fina Bank Ltd v Spares and Industries Ltd
    Civil Appeal No. 25 of 2000 LLR 5844
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Forcin Motorcycle Co. Ltd v Ann Wambui & Another
    (2018) eKLR
  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others
    (2015) eKLR
  • Equatorial Commercial Bank Ltd & 2 Others v Retreat Villas Limited
    (2006) eKLR
  • Andrew Shisala Angalushi v Zephaniah K. Yego & Aginga Asiligwa Chanzu
    (2020) eKLR
  • Suleiman Sumra & Another vs Said Mohamed Said
    (2018) eKLR
  • Joseph Oduor Anode v Kenya Redcross Society
    (2012) eKLR
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others
    [2015] eKLR
  • Lubulellah & Associates Advocates vs N. K. Brothers Limited
    [2014] eKLR
  • Otieno, Ragot & Company Advocates v Kenya Airports Authority
    [2021] eKLR
Jurisdiction invoked
Section 51(2) of the Advocates Act and section 3A of the Civil Procedure Act (inherent powers); Rule 11(4) of the Advocates Remuneration Order

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, "B.M. Mung’ata & Co. Advocates v Seke (Environment and Land Miscellaneous Application 6 of 2021) [2024] KEELC 1183 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1183/eng@2024-03-05

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