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ELCDismissedNotice of Motion dated 9th February 2024 (in ELC Misc. matters E228 of 2021, E230 of 2021, E235 of 2021, E229 of 2021 and ELC No. E179 of 2021)· [2024] KEELC 4628 (KLR)

Maru v Maru; Dosani (Interested Party) (Environment & Land Case 438 of 2013) [2024] KEELC 4628 (KLR)

Environment and Land Court
6 June 2024
3,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to release Kshs. 8 million from an escrow account because a lawyer's fees dispute remained unresolved and the applicant had failed to act on earlier court orders.

What this practically means

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Executive summary

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The Interested Party, Rahemat Essa Dosani, moved the court by notice of motion dated 9th February 2024 seeking release of Kshs. 8,000,000 held by Majanja & Luseno Advocates to the firm of Tariq Khan & Associates, with the taxed costs of Kshs. 1,471,254.05 paid to Nelson Harun & Co. Advocates, plus interest on the taxed sum from the order of 27th July 2022. She urged that the settlement monies had been idle since 2019, that all bills except fresh refilings had been determined, and that she urgently needed the funds for medical treatment at the age of 62. The Respondent advocate opposed, asserting the Applicant bore the duty to open the joint escrow account at Standard Chartered Bank as ordered, that he was never served with an extracted order or proper account opening forms, and that several bills of costs remained pending, including in a succession cause and the Court of Appeal, so release was premature. The court found the order of charge over the Kshs. 8,000,000 remained unvaried and that fresh bills were pending taxation, applying section 48(1) of the Advocates Act on when fees fall due and the principle that the court opts for the lower risk of injustice. Interest was refused due to the Applicant's counsel's indolence in failing to secure the escrow account. The application was dismissed as premature and without merit, with costs to the Respondent.

Key legal issues

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01

Prematurity of release of charged funds pending taxation of bills

Holding

The application was dismissed as premature because the charging order over the Kshs. 8,000,000 had not been varied and the Respondent had deposed to filing fresh bills of costs still pending taxation

Reasoning

The court had previously charged the Kshs. 8,000,000 pending determination of costs payable to the advocate. Three bills were taxed at Kshs. 1,471,254.05 and two struck out, but the Respondent deposed that the struck-out bills were filed afresh and other bills, including in a succession cause and the Court of Appeal matter, were pending. The court could only revise the charge once the pending bills were finalized, which the Applicant had not demonstrated.

p. 5
02

Entitlement to interest for delay in opening the escrow account

Holding

Interest was refused because the Applicant's counsel bore the higher duty to open the joint account and failed to serve an extracted order or forward account opening forms for signature

Reasoning

The order of 13th July 2022 specified a reputable bank, and correspondence showed the Respondent expected Standard Chartered Bank. The Respondent averred he was never served with an extracted, signed and sealed order nor invited to the bank. The court found the Applicant's counsel indolent and declined prayer 4 for interest on the charged sum.

p. 6
03

When advocate's fees become due

Holding

Under section 48(1) of the Advocates Act, fees are not due until the bill is served and, if unsettled, taxed

Reasoning

The Applicant argued that the Respondent should take the taxed amount rather than self-assess. The court noted the fresh bills allegedly filed and applied section 48(1), which supports that fees fall due only upon service and taxation of a bill, meaning untaxed bills could properly remain outstanding before release of the charged funds.

p. 5

Legal principles established

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  • An advocate's fees are not due until the bill of costs has been served on the client and, where unsettled, taxed by the court
  • A party who obtains a court order bears the duty to take steps to ensure its compliance
  • In exercising discretion the court should opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.The application dated 9th February 2024 is dismissed for being premature and without merit
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Advocates ActSection 48(1)

Cases cited (2)

  • Republic v Lucas M. Maitha Chairman, Betting Control And Licensing Board & 4 others Ex-parte: Interactive Gaming and Lotteries Limited
  • Suleiman v Amboseli Resort Limited
    [2004] 2 KLR 589
Jurisdiction invoked
Original and supervisory jurisdiction of the Environment and Land Court over matters before it, including its orders of 27th July 2022 and 13th July 2022 directing an escrow account and a charge over Kshs. 8,000,000; Advocates Act section 48(1) considered

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, "Maru v Maru; Dosani (Interested Party) (Environment & Land Case 438 of 2013) [2024] KEELC 4628 (KLR)", Case Analysis (2024). Notice of Motion dated 9th February 2024 (in ELC Misc. matters E228 of 2021, E230 of 2021, E235 of 2021, E229 of 2021 and ELC No. E179 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4628/eng@2024-06-06

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