Lubulellah & Associates v Gilbi Construction Company Ltd (Environment & Land Miscellaneous Case E150 of 2023) [2024] KEELC 4742 (KLR)

The court found the Client filed the substantive reliefs seeking to set aside the certificate of taxation before obtaining extension of time, rendering the application a nullity. Further, Rule 11(1) of the Advocates Remuneration Order is mandatory: a notice of objection must be filed and served within 14 days and itemise the objectionable items. Absent such a notice, the court is divested of jurisdiction to entertain a reference. The reference was thus premature, misconceived and fatally incompetent.

The court distilled three requirements from Section 51(2): existence of a certificate of taxation, that it has not been set aside or altered, and absence of a retainer dispute. The Client conceded the Advocate was instructed and rendered services; the only contention was that a retainer agreement in a sale agreement barred the bill, which the court held did not amount to a dispute of retainer. The certificate remained intact, so entry of judgment was the only lawful recourse.

Rule 7 of the Advocates Remuneration Order permits an advocate to charge interest at 14% per annum from the expiration of one month from delivery of the bill. The affidavit of service showed the Bill of Costs was served on 17th August 2023. The court adopted the reasoning in Muri Mwaniki Wamiti Advocates that the reference point is delivery of the bill, and therefore disallowed the claim for interest from the date of lodgment.

The Client argued the sale agreement dated 30th October 2015 contained a retainer, so the Advocate could not tax an Advocate-Client bill, invoking privity and Section 45 of the Advocates Act. The court held retainer was admitted and conceded; the critical condition under Section 51(2) was absence of a retainer dispute, which the Client's argument did not satisfy. The privity argument did not defeat entry of judgment on the certificate.