Lubulellah and Associates Advocates v Gilbi Construction Company Limited (Environment & Land Miscellaneous Case E151, E153 & E154 of 2023) [2024] KEELC 4389 (KLR)
The bottom line
#The Environment and Land Court set aside a Kshs. 520,470 fee taxation because a sale agreement clause already fixed the advocate's fees at Kshs. 100,000.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over advocate-client taxation references
The ELC is a superior court with jurisdiction over advocate-client and party-party bill of costs like the High Court
The court held that under Article 162(2)(b) and the ELC Act, the court hears land and environment disputes and is endowed with jurisdiction to determine both party-and-party and advocate-client bills of costs, just as the High Court, citing Section 7 of Schedule Six of the Constitution as supporting Article 162.
Competency of a reference filed after 14 days where reasons were supplied late
The reference was competent because it was filed four days after receipt of the ruling/reasons
The court held that paragraph 11 applications must be assessed case by case. Where the taxing officer delays furnishing reasons, an objector who files within 14 days of receipt of the reasons is not out of time; leave is only required where the objector fails to file within 14 days after receipt of the reasons.
Existence of a binding fees agreement under section 45 of the Advocates Act
Clause 12 and Item 3 of the sale agreement constituted a written, binding agreement fixing the advocate's fees at Kshs. 100,000
The court found the sale agreement prepared by the advocate disclosed an agreed fee of Kshs. 100,000 payable before signing. Section 45 requires a written agreement signed by the client or authorized agent; a memorandum in writing suffices, even if embedded in another document such as a sale agreement. The taxation was therefore set aside and the bill dismissed.
Legal principles established
#- A fees agreement under section 45 of the Advocates Act need not be in one document titled 'agreement for payment of legal fees'; a memorandum in writing, including correspondence or a clause in a sale agreement, suffices
- Where reasons appear on the face of the taxation ruling the objector may file a reference without awaiting further reasons, or may await the taxing officer's mandatory duty under paragraph 11(2) of the ARO
Court orders
#- 1.The ruling by the Taxing Officer delivered on 16/01/2024 taxing the Advocate-Client Bill of Costs dated 7/06/2023 at Kshs. 520,470.00 be and is hereby set aside in its entirety
- 2.The said ruling be substituted with an order dismissing the Bill of Costs as it relates to the costs/fees of the advocate subject of a written and enforceable fees agreement
- 3.The said ruling be substituted with an order dismissing the Bill of Costs as it violates express and mandatory provisions of section 45(6) of the Advocates Act
- 4.Costs of both applications awarded to the Client
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lubulellah and Associates Advocates v Gilbi Construction Company Limited (Environment & Land Miscellaneous Case E151, E153 & E154 of 2023) [2024] KEELC 4389 (KLR)", Case Analysis (2024). ELC Misc. No. E151 of 2023 (with ELC Misc. No. E153 of 2023 and ELC Misc. No. E154 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4389/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.