Kwengu & Company Advocates v Raja (Environment and Land Miscellaneous Application 94 of 2017) [2024] KEELC 7027 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an advocate's bill of costs because a signed settlement agreement fixing the fees was valid and barred taxation.
What this practically means
#Executive summary
#Key legal issues
#Whether the issue of the Advocate's remuneration is settled
Yes - the bill of costs in ELCMisc. 200 of 2014 was marked settled on 22nd August 2017, so the same dispute is concluded; re-litigating it is an abuse of process
The court examined the two prior files, ELCMisc. 200 of 2014 (marked settled on 22nd August 2017) and ELCMisc. E233 of 2022 (bill struck out as an abuse of process). The present bill concerns the same subject matter between the same parties. Citing the Supreme Court in John Florence Maritime and the Indian Supreme Court in Lal Chand, the court held that the principle of finality and res judicata bar further claims on the same subject matter, and the Advocate should have appealed or sought review rather than file anew.
Whether the Deed of Settlement dated 22nd June 2017 constitutes a valid remuneration agreement under Section 45 of the Advocates Act
Yes - the Deed is a valid remuneration agreement; under Section 45(6) the Advocate's costs cannot be taxed, and the Client's objection is upheld
Section 45 permits written, signed remuneration agreements, and subsection (6) bars taxation where such an agreement exists. The Client produced the duly signed Deed fixing fees at Kshs. 10,000,000/-. The Advocate alleged forgery but, the burden of proving fraud lying on him, discharged nothing. The undercharging argument was unsupported, and per Njogu & Company Advocates, an advocate is estopped by such an agreement from resorting to taxation.
Legal principles established
#- When a matter is marked as settled, the dispute is resolved, ended and concluded, and finality must attach to litigation
- Where a party alleges forgery of a document, the burden of proving the forgery lies on that party, and it shifts once the party producing the document discharges the initial legal burden
- Where there is a valid agreement on remuneration under Section 45 of the Advocates Act, the Advocate's costs cannot be subjected to taxation under Section 45(6)
- An advocate who knowingly enters a fee agreement contrary to the Remuneration Order is estopped from seeking taxation under the Order
Court orders
#- 1.The Advocate's Bill of Costs filed on 22nd May 2017 (as originally filed and as subsequently amended) is struck out with costs to the Client, both for being an abuse of the process of court and for being improper under Section 45(6) of the Advocates Act
- 2.A declaration that the Deed of Settlement dated 22nd June 2017 is a valid remuneration agreement under Section 45 of the Advocates Act
- 3.The bill of costs filed by the Advocate in ELCMisc/E267/2022 is struck out with costs to the Client
- Jurisdiction invoked
- Rule 12 of the Advocates Remuneration Order (objections to taxation referred to the High Court/ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwengu & Company Advocates v Raja (Environment and Land Miscellaneous Application 94 of 2017) [2024] KEELC 7027 (KLR)", Case Analysis (2024). Taxation Objections re Advocate's Bill of Costs filed 22nd May 2017 (ELC Taxation Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7027/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.