V.Chokaa & Co. Advocates v County Government of Mombasa Successor of Municipal Council of Mombasa (Environment and Land Miscellaneous Application E083 of 2022) [2024] KEELC 4896 (KLR)
The bottom line
#The Environment and Land Court ruled that a Kenyan advocate's fee claim filed more than six years after the work ended is time-barred and cannot proceed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary objection dated 5th February, 2024 on the mandatory provisions of the limitation period set out in Section 4(1)(a) of the Limitation of Actions Act is merited
- 2.If the answer to issue (a) is in the negative, whether the Notice of Motion application dated 30th August, 2023 to set aside the Decree by the Deputy Registrar/Taxing Master made on 23rd August 2023 has any merit
- 3.Who will bear the costs of the Notice of Motion application dated 30th August, 2023 and the Notice of Preliminary Objection dated 5th February, 2024
Key legal issues
#Whether limitation is a pure point of law suitable for preliminary objection
Yes; a plea of limitation is a pure point of law under the Mukisa Biscuit principles and the objection was properly before the court
Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held that a plea of limitation raises a pure point of law which, if upheld, may dispose of the suit without ascertainment of facts. The Respondent's objection under Section 4(1)(a) of the Limitation of Actions Act was therefore properly raised as a preliminary objection and the court was duty bound to determine it before full trial.
Whether the Advocate-Client Bill of Costs dated 17th November 2022 was time-barred
Yes; the advocate-client relationship being contractual, Section 4(1)(a) of the Limitation of Actions Act applies, and the bill filed more than six years after the last correspondence in 2014 was statute-barred
The court held that a retainer creates a contract for services enforceable within six years under Section 4(1)(a) of the Limitation of Actions Act. The last letter was dated 20th May 2014; the bill should have been filed by 6th May 2020 but was filed on 17th November 2022. Following Abincha & Co. Advocates v Trident Insurance and Halsbury's Laws (Vol. 28, para 879), time runs from termination of the action or lawful ending of the retainer.
Whether the Taxing Master had jurisdiction to determine the preliminary objection on limitation
Yes; the Taxing Master had jurisdiction to deal with a preliminary objection revolving around the pith and substance of the bill of costs before proceeding to taxation
The Applicant argued that questions challenging a bill's legality should be referred to a Judge (citing Abincha & Co. Advocates and paragraph 12(1) of the Advocates Remuneration Order). The court declined, reasoning on burden of proof that the Applicant had to prove its claim, and that since the preliminary objection concerned the substance of the bill, the Taxing Master could lawfully determine it first. The court thereby rejected the Applicant's jurisdictional challenge.
Legal principles established
#- A bill of costs filed more than six years after completion of the work or termination of the retainer is statute-barred under Section 4(1)(a) of the Limitation of Actions Act
- An objection that a matter is time-barred is a pure point of law properly raised by way of preliminary objection
- A Taxing Master has jurisdiction to determine a preliminary objection going to the pith and substance of the bill of costs before proceeding to taxation
- A court will not interfere with a Taxing Master's ruling unless satisfied that it was clearly wrong or vitiates the ruling
Court orders
#- 1.The Notice of Motion application dated 30th August, 2023 is dismissed for being limited by Section 4(1)(a) of the Limitation of Actions Act, Cap. 22
- 2.The Notice of Preliminary Objection dated 5th February, 2024 is found to have merit and is upheld; the claim is time-barred pursuant to the Limitation of Actions Act, Cap. 22 and is dismissed
- 3.Costs of the Notice of Motion application dated 30th August, 2023 and the Notice of Preliminary Objection dated 5th February, 2024 awarded to the Respondent, to be borne by the Applicant
- 4.These orders apply mutatis mutandis to ELC Miscellaneous/E080 of 2022; E081 of 2022; E107 of 2022; and E112 of 2012 (as printed)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 11(1) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act, Cap. 21
- Consolidated with
- ELC Miscellaneous/E080 of 2022, ELC Miscellaneous/E081 of 2022, ELC Miscellaneous/E107 of 2022, ELC Miscellaneous/E112 of 2022
Relief refused
#Setting aside of the Decree/decision by the Deputy Registrar/Taxing Master made on 23rd August 2023 so that the Bill of Costs could proceed to taxation
The Bill of Costs was filed more than six years after the cause of accrued, hence time-barred under Section 4(1)(a) of the Limitation of Actions Act; the preliminary objection was upheld
Costs
Costs of the Notice of Motion application dated 30th August, 2023 and the Notice of Preliminary Objection dated 5th February, 2024 awarded to the Respondent, to be borne by the Applicant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 30th August, 2023 be and is hereby dismissed for being limited by the provision of Section 4 (1) (a) of the Limitation of Actions Act, Cap. 22.
That the Notice of Preliminary objection dated 5th February, 2024 be and is hereby found to have merit and the same is upheld, the claim herein is time-barred pursuant to the Limitation of Actions Act, Cap. 22 and therefore dismissed.
On the contrary, the Bill of Costs was filed on 17th November, 2022 outside the statutory period of 6 years and hence it is graphically statute barred.
the Court will not interfere with a ruling made by the Taxing Master in every case where its view of the matter in dispute differs from that of the Taxing Master, but only when it is satisfied that the Taxing Masters view of the matter differs so materially from its own that it should be held to vitiate his ruling.
any bill of costs filed more than 6 years after completion of the work which an advocate was retained by the client to do, or after termination of retainer in respect of such work, is statute barred.
That these orders shall apply “Mutatis Mutandis” to ELC. Miscellaneous/E080 of 2022; E081 of 2022; E107 of 2022; and E112 of 2012 respectively.
Issues in the judgment
#The judgment describes the court as sitting under appellate jurisdiction in dealing with the reference against the Taxing Master's decision, though it is a reference under Rule 11(1) of the Advocates (Remuneration) Order rather than a conventional appeal
The ruling striking out the Bill of Costs is variously dated 14th June, 2023 and 23rd August, 2023 within the same judgment
The disposition order misprints ELC Miscellaneous E112 of 2022 as 'E112 of 2012'
The judgment states the retainer was 'in the year 2011' whereas the evidence and submissions throughout place it between 2007 and 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "V.Chokaa & Co. Advocates v County Government of Mombasa Successor of Municipal Council of Mombasa (Environment and Land Miscellaneous Application E083 of 2022) [2024] KEELC 4896 (KLR)", Case Analysis (2024). ELC Miscellaneous/E083 of 2022 (lead matter, with E080 of 2022; E081 of 2022; E107 of 2022; E112 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4896/eng@2024-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.