Lubulellah & Associates Advocates v Gilbi Construction Limited (Miscellaneous Application E148 of 2023) [2024] KEELC 5764 (KLR)
The bottom line
#A Kenyan court ordered a client to pay his advocate over KShs. 444,000 in taxed legal fees plus interest, because the client's objection to the fee bill was too vague.
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 learned taxing master's finding on the Respondent's preliminary objection was lawful and legally tenable.
- 2.Whether the reference by and on behalf of the Client/Respondent is competent and legally tenable or otherwise.
- 3.Whether the Client/Respondent has met the threshold for setting aside and/or impeaching a certificate of taxation or otherwise.
- 4.Whether the application by the advocate/Applicant accords with the provisions of Section 51(2) of the Advocates Act Cap 16 and thus merited.
Key legal issues
#Whether the preliminary objection on limitation could be determined in limine
The taxing officer correctly held the preliminary objection could not be determined without factual inquiry; limitation could not be canvassed as a preliminary objection where facts were disputed, and the bill was in any event filed within six years.
Determining when the bill of costs was barred required ascertaining when the instructions/retainer concluded, a factual inquiry. A preliminary objection must proceed on assumed undisputed facts and cannot be supported by the proponent's own evidence or replying affidavit. Correspondence in the advocate's bundle showed instructions continued to 2018, so the bill filed in June 2023 was within the six-year limitation period under Section 4(1) of the Limitation of Actions Act.
Competence of the client's reference under Rule 11(1) of the Advocates Remuneration Order
The reference was incompetent because the notice of objection to taxation was vague and omnibus, failing to specify the items objected to as mandatorily required.
Rule 11(1) requires the objecting party to give notice specifying the items of taxation objected to within 14 days. The client's notice dated 23rd April 2024 did not identify the impugned items. Following Machira & Co. Advocates and Matiri Mburu & Chepkemboi Advocates, such a vague notice is fatally defective and invalid; a reference founded on it is premature, misconceived and stillborn.
Whether the client established grounds to impeach the certificate of taxation
No error of principle was demonstrated; the client failed to discharge the burden of proving payment of fees or the existence of a fee/retainer agreement.
Interference with a certificate of taxation requires an error of principle, consideration of erroneous factors, or failure to consider relevant material. No fee/retainer agreement was exhibited before the taxing officer or the court; the claim of full payment was unsupported; and claims of withheld monies required either an Originating Summons under Order 52 Rule 4 or a complaint to the Advocates Disciplinary Tribunal, neither of which was mounted.
Whether entry of judgment under Section 51(2) of the Advocates Act was merited
The advocate's application satisfied Section 51(2): the certificate of taxation had not been set aside or altered and there was no dispute as to retainer, warranting entry of judgment for the certified sum.
Section 51(2) provides that a certificate of taxation is final as to the amount of costs unless set aside or altered by the court, and judgment may be entered for the sum certified where retainer is not disputed. The certificate issued on 23rd April 2024 stood intact, retainer was undisputed, and the client's reference had failed, so judgment for Kes.444,953.60 with interest was proper.
Legal principles established
#- A notice of objection to taxation must specifically identify the items of taxation objected to; an omnibus or vague notice is invalid and cannot anchor a reference.
- A preliminary objection must raise a pure point of law on undisputed facts; if the proponent must resort to a replying affidavit or evidence, it ceases to be a preliminary objection.
- The court on a reference will not interfere with a taxing officer's discretion absent an error of principle.
- A certificate of taxation not set aside or altered by the court is final, and judgment may be entered for the sum certified where retainer is not disputed.
Court orders
#- 1.The Application dated the 3rd May 2024 be and is hereby allowed.
- 2.Judgment entered on the basis of the certificate of taxation for the sum of Kes.444,953.60/= only.
- 3.The award shall attract interests at 14% w.e.f 17th of August 2023 till payment in full, interest reckoned in accordance with Rule 7 of the Advocates Remuneration Order.
- 4.The Application dated 6th May 2024 be and is hereby dismissed.
- 5.Costs of the two applications awarded to the Advocate/Applicant.
- 6.Costs of the applications assessed and certified in the sum of Kes.25,000/= only each.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 51(2) of the Advocates Act, Chapter 16 Laws of Kenya; reference under Rule 11 of the Advocates Remuneration Order
Relief refused
#Client's reference seeking to set aside the decision of the Taxing Officer dated 23rd April 2024 and remit the Bill of Costs for taxation before another Taxing Officer
The notice of objection to taxation was vague and omnibus, not highlighting the items objected to as required by Rule 11(1) of the Advocates Remuneration Order, and no error of principle was established
Costs
Costs of the two applications awarded to the Advocate/Applicant, assessed and certified at Kes.25,000/= each.
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.
The Application dated the 3rd May 2024 be and is hereby allowed.
Consequently, Judgment be and is hereby entered on the basis of the certificate of taxation for the sum of Kes.444, 953.60/= only.
The award in terms of clause [ii] shall attract interests at 14% w e.f 17th of August 2023 till payment in full.
The Application dated 6th May 2024 be and is hereby dismissed.
In short, the reference beforehand is stillborn.
where the proponent of a preliminary objection has to invoke and resort to the contents of a replying affidavit filed, then what is propagated to be a preliminary objection ceases to be such.
Issues in the judgment
#Interest commencement date inconsistency: the application sought interest from 7th June 2023 (lodgement of the Bill of Costs) but the final orders award interest from 17th August 2023
Submissions date discrepancy: the application is described as dated 3rd May 2024 but submissions are first described as dated 24th May 2024 and later as 22nd May 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lubulellah & Associates Advocates v Gilbi Construction Limited (Miscellaneous Application E148 of 2023) [2024] KEELC 5764 (KLR)", Case Analysis (2024). Not stated in the judgment (Advocate/Client Bill of Costs dated 7th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5764/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.