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ELCPartially Allowed· [2024] KEELC 5443 (KLR)

Patrick Kimathi Muchena t/a Arimi Kimathi & Co. Advocates v Kamau & 3 others (Suing as the Legal Representatives of the Estate of Kamau Thiong’o - Deceased) (Environment and Land Miscellaneous Application E072 of 2022) [2024] KEELC 5443 (KLR)

Not expressly stated in the judgment (delivered at Mombasa by a Judge)
23 July 2024
2,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court let an advocate recover Kshs 438,045 in taxed legal fees with interest, rejecting a late attempt to drag a third party into the fee dispute.

What this practically means

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Executive summary

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This judgment decides two applications arising from an advocate-client bill of costs taxed by the Deputy Registrar at Mombasa. The first application, dated 18th March 2024 under Section 51(1) and (2) of the Advocates Act and Rule 7 of the Advocates (Remuneration) Order, sought to enjoin Jacob Kamau Kahiu, the person who allegedly instructed the applicant advocate, as an interested party or defendant. Guided by Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, Matheka J found the application to be an abuse of the court process designed to delay execution, noting the respondent's advocate had abandoned the joinder application on 6th September 2023 before the taxation ruling of 13th September 2023; it was dismissed with costs. The second application, dated 17th November 2023, sought judgment for the taxed sum of Kshs 438,045 with interest at 14% per annum and leave to execute. The court found the respondents had never objected to the taxing master's decision under Rule 11 of the Advocates Remuneration Order within the prescribed 14 days. Applying the First American Bank v Shah and Joreth Ltd v Kigano principles, and noting the subject matter was unascertainable from the pleadings since the prayers were only injunctive and the suit was withdrawn, the court found no error of principle in the taxation. Judgment was entered for the applicant for the taxed costs with interest at 14% per annum from the date of taxation until payment in full, with leave to execute, and the application was granted with costs.

Key legal issues

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01

Whether the intended interested party ought to be enjoined as a defendant or interested party

Holding

The application was dismissed as an unmerited abuse of process meant to delay execution; the respondent's advocate had abandoned the joinder application on 6th September 2023 before the ruling of 13th September 2023

Reasoning

The court applied Order 1 Rule 10(2) of the Civil Procedure Rules and the Communications Commission of Kenya test for joinder of interested parties, asking the intended party's relevance to the proceedings and whether prejudice would flow from denial of joinder. Perusing the record, the court found the respondent's advocate had been party to the entire taxation process and had abandoned the application to enjoin the instructor, so the late application was abusive and delaying execution.

p. 3
02

Whether the court should enter judgment for the taxed costs with interest

Holding

Judgment entered for the applicant for Kshs 438,045 with interest at 14% per annum from the date of taxation

Reasoning

The respondents had not objected to the taxing master's decision under Rule 11 of the Advocates Remuneration Order within the prescribed 14-day periods. Applying the First American Bank v Shah and Joreth Ltd principles, the court found no error of principle or manifest excess. The subject matter was unascertainable from the pleadings, and the taxing master properly considered that the prayers were only injunctive and the matter was withdrawn.

p. 4

Legal principles established

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  • An interested party is one who has a stake in the proceedings though not a party ab initio and will be affected by the decision of the court
  • A taxing master's decision cannot be interfered with unless based on an error of principle or the fee awarded is manifestly excessive so as to justify an inference of error of principle
  • Where the subject matter is unascertainable from the pleadings, judgments or settlement, the taxing master is entitled to use his or her discretion to assess such instruction fee as he or she considers just

Court orders

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  1. 1.The application dated 18th March 2024 (enjoinment of Jacob Kamau Kahiu) is dismissed with costs
  2. 2.The application dated 17th November 2023 is granted as prayed with costs
  3. 3.Judgment entered for the applicant against the respondents for Kshs 438,045 being costs taxed by the taxing master, with interest at 14% per annum from the date of taxation until payment in full, and leave to execute

Authorities

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Legislation

  • Advocates Act Cap 16Section 51(1) and (2)
  • Advocates (Remuneration) OrderRule 7
  • Advocates Remuneration OrderRule 11(1) and (2)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Advocates Renumeration (Amendment) Order2014

Cases cited (5)

  • Communications Commission Of Kenya And 4 Others v Royal Media Services Limited & 7 Others
    Petition No. 15 of 2014 eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • First American Bank of Kenya v Shah and Others
    (2002) EALR 64
  • Joreth Ltd v Kigano and Associates
    (2002) 1 EA 92
  • Republic v. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'Njuguna
    (2006) eKLR
Jurisdiction invoked
Section 51(1) and (2) of the Advocates Act Cap 16 and Rule 7 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, "Patrick Kimathi Muchena t/a Arimi Kimathi & Co. Advocates v Kamau & 3 others (Suing as the Legal Representatives of the Estate of Kamau Thiong’o - Deceased) (Environment and Land Miscellaneous Application E072 of 2022) [2024] KEELC 5443 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5443/eng@2024-07-23

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