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ELCOtherTaxation Objections re Advocate's Bill of Costs filed 22nd May 2017 (ELC Taxation Cause)· [2024] KEELC 7027 (KLR)

Kwengu & Company Advocates v Raja (Environment and Land Miscellaneous Application 94 of 2017) [2024] KEELC 7027 (KLR)

Environment and Land Court
17 October 2024
3,459 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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In a taxation objection referred to the court under rule 12 of the Advocates Remuneration Order, the Client (Hitenkumar Amritlal Raja) objected to taxation of Kwengu and Company Advocates' bill of costs filed on 22nd May 2017, arising from services in HCC (ELC) 312 of 2009 (Hitenkumar Raja v Jacob Juma). The Client argued that a Deed of Settlement dated 22nd June 2017 fixing his total fees at Kshs. 10,000,000/- was a valid remuneration agreement under Section 45 of the Advocates Act, barring taxation under Section 45(6), and that the bill was an abuse of process given prior proceedings. The Advocate denied executing the Deed, alleging forgery, and insisted the Client bore the burden of proof. M.D. Mwangi J framed two issues. On finality, the court noted ELCMisc. 200 of 2014 over the same bill had been marked settled on 22nd August 2017 and ELCMisc. E233 of 2022 struck out as an abuse of process; re-litigating the same subject matter was abusive. On the Deed, the court held the Client discharged the initial burden by producing the signed Deed, shifting the evidential burden of proving forgery to the Advocate, which he failed to discharge; the undercharging argument was equally unsupported. Applying Njogu & Company Advocates v NBK Ltd, the court held the Advocate estopped. The court upheld the Client's objection, declared the Deed a valid Section 45 remuneration agreement, struck out the bill of costs with costs to the Client, and applied the same orders to ELCMisc/E267/2022.

Key legal issues

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01

Whether the issue of the Advocate's remuneration is settled

Holding

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

Reasoning

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.

p. 3
02

Whether the Deed of Settlement dated 22nd June 2017 constitutes a valid remuneration agreement under Section 45 of the Advocates Act

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 3.The bill of costs filed by the Advocate in ELCMisc/E267/2022 is struck out with costs to the Client

Authorities

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Legislation

  • Advocates ActSections 44, 45(6), 46
  • Advocates Remuneration OrderRule 12
  • Evidence ActSections 107 and 109

Cases cited (6)

  • John Florence Maritime Services Limited & another versus Cabinet Secretary for Transport and Infrastructure & 3 others
    (2021) eKLR
  • Lal Chand versus Randha Kishan
    AIR 1977 SC 789
  • Satya Bhama Gandhi vs DPP & 3 others
    (2018) eKLR
  • Kinyanjui Kamau v George Kamau
    (2015) eKLR
  • Ahmed Mohammed Noor v Abi Aziz Oman
    (2019) eKLR
  • Njogu & Company Advocates vs. NBK Ltd
    (2016) eKLR
Jurisdiction invoked
Rule 12 of the Advocates Remuneration Order (objections to taxation referred to the High Court/ELC)

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, "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.