Eno & Associates Advocates v Nairobi City County (Miscellaneous Application E081 of 2023) [2024] KEELC 6484 (KLR)
The bottom line
#Nairobi City County lost its chance to challenge an Kshs. 80 million legal fee bill after sitting on its rights, and the High Court converted the taxed bill into an enforceable judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether enlargement of time to file a reference was merited
Not merited; the delay was unexplained and the client displayed lethargy and want of diligence
The Ruling on taxation was delivered in the presence of the Respondent's advocate, who was thus knowledgeable of its terms and was obliged to communicate them to the client and lodge a Notice of Objection to Taxation under Rule 11(1) of the Advocates Remuneration Order. No evidence of correspondence with the client or of difficulty in giving instructions was produced. Granting the indulgence would reward dilatoriness contrary to Section 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution.
Whether stay of execution pending a reference could be granted
No; no reference existed and leave to file one had not been granted, so the Order 42 Rule 6 conditions could not be met
Filing an application for enlargement of time is not synonymous with an order granting it. The stay conditions in Order 42 Rule 6 of the Civil Procedure Rules, which apply mutatis mutandis to stay pending a reference (substantial loss, security, reasonable delay), cannot be evaluated in the absence of a filed reference. Stay cannot issue in anticipation or in vacuum.
Whether judgment should be entered in terms of the Certificate of Taxation
Yes; the statutory threshold under Section 51(2) of the Advocates Act was satisfied
The Certificate of Taxation dated 28th February 2024 had not been challenged, varied, rescinded or set aside, so it remained final as to the amount of costs. The retainer was not disputed and the Respondent did not contest that legal services were provided. Section 51(2) therefore permits entry of judgment for the certified sum of Kshs. 79,994,667 with costs. Interest at 14% per annum is provided for under Rule 7 of the Advocates Remuneration Order.
Legal principles established
#- A party seeking extension of time must document the period of delay and offer a candid, reasonable and justifiable explanation for it; condonation cannot be had for the mere asking.
- An order of stay of execution cannot issue pending a reference that has not been filed, just as stay cannot issue pending an appeal that has not been filed.
- Where retainer is not disputed and the Certificate of Taxation has not been set aside or altered, the court may enter judgment for the certified sum under Section 51(2) of the Advocates Act.
- A client's want of diligence or slovenliness disentitles it from benefiting from the court's equitable discretion to enlarge time.
Court orders
#- 1.The Application dated 27th June 2024 be and is hereby dismissed with costs
- 2.The Application dated 5th April 2024 be and is hereby allowed with costs
- 3.The Certificate of Taxation dated 28th February 2024 be and is hereby adopted as the judgement of the court
- 4.The Advocate/Applicant shall be entitled to interest in accordance with Rule 7 of the Advocates Remuneration Order 2009 w.e.f. 15th June 2023
- Jurisdiction invoked
- Section 51(2) of the Advocates Act (Chapter 16, Laws of Kenya) and Rule 11 of the Advocates Remuneration Order; jurisdiction to enlarge time under court's inherent discretion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eno & Associates Advocates v Nairobi City County (Miscellaneous Application E081 of 2023) [2024] KEELC 6484 (KLR)", Case Analysis (2024). Not stated in judgment (two applications: dated 5th April 2024 and 27th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6484/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.