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ELCStruck OutChamber Summons dated 15th January 2023 (Reference against Taxation Ruling dated 14th December 2023)· [2024] KEELC 7398 (KLR)

Mwangi t/a Karinga Mwangi & Co Advocates v Raei Investment Limited; Wanyama & another (Interested Parties) (Environment & Land Miscellaneous Case E076 of 2023) [2024] KEELC 7398 (KLR)

High Court of Kenya
31 October 2024
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court struck out a client's challenge to legal fees because no Notice of Objection was filed within 14 days of taxation, as required in Kenya.

What this practically means

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Executive summary

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This is a High Court ruling on a Chamber Summons brought under Rule 11(2) of the Advocates Remuneration Order, seeking to set aside a taxation ruling of Deputy Registrar V. Kiplagat dated 14th December 2023, which taxed the Advocate's bill of costs at Kshs. 1,810,805 arising from instructions in the sale of a mansionette valued at Kshs. 130,000,000. The Client contended that full instruction fees were wrongly awarded for an incomplete transaction, that the wrong schedule of the Remuneration Order was applied, and that most items were excessive. The Advocate opposed, arguing non-compliance with Rule 11's notice-of-objection requirement and time limits. The Interested Parties additionally argued there was a fees agreement breaching Section 45(6) of the Advocates Act and that the bill fell under Schedule 5. The court framed two issues: competence of the Reference for failure to comply with Rule 11, and whether a retainer agreement existed. It found no Notice of Objection was ever filed; following Twiga Motors and Machira & Co. Advocates, the Notice is the equivalent of a memorandum of appeal and its absence renders a reference incompetent. Procedural compliance, the court held, is not antithetical to Article 159. On the second issue, applying privity of contract and Omulele & Tollo Advocates, the court held an advocate is not a party to the agreement he drafts, and absent a written, signed retainer under Section 45, the Advocate could pursue taxation. The Chamber Summons was struck out with costs to the Advocate.

Key legal issues

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01

Competence of the Reference for failure to file a Notice of Objection under Rule 11

Holding

The Reference was incompetent because no Notice of Objection was filed identifying the items objected to within 14 days of taxation.

Reasoning

Rule 11(1) requires an objecting party to give written notice of the specific items objected to within fourteen days; the taxing officer then provides reasons, and only then may a chamber summons reference be filed. The court confirmed from the record that no Notice of Objection was ever filed. Following Twiga Motors and Machira & Co. Advocates, the court held the notice is the equivalent of a memorandum of appeal, and its absence renders the reference incompetent, Article 159 notwithstanding.

p. 4
02

Whether the sale agreement's fee schedule amounted to a retainer agreement under Section 45(6) of the Advocates Act

Holding

There was no valid fees agreement to preclude the Advocate from taxing his costs.

Reasoning

Applying the doctrine of privity of contract, the court held that an advocate drafting an agreement for a client does not become a party to it, so the purchasers could not invoke the fee schedule in the sale agreement against the Advocate. Citing Omulele & Tollo Advocates and Ahmednasir Abdikadir & Co. Advocates, the court held that a retainer agreement under Section 45 must be in writing and signed by the client or authorized agent; none existed here.

p. 6

Legal principles established

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  • A Notice of Objection to taxation is a mandatory prerequisite to a Reference under Rule 11 of the Advocates Remuneration Order and must specify the items objected to
  • Compliance with rules of procedure is not antithetical to Article 159 of the Constitution
  • An Advocate is precluded from taxing costs only where there is a written retainer agreement under Section 45 of the Advocates Act; an advocate is not party to the agreement he drafts for a client

Court orders

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  1. 1.The Chamber Summons dated the 15th January, 2023 is struck out with costs to the Advocate

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), (2), (3), (4)
  • Advocates Remuneration OrderSchedule 1
  • Advocates Remuneration OrderSchedule 5
  • Advocates ActSection 45
  • Advocates ActSection 45(6)
  • Constitution of KenyaArticle 159
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Appellate Jurisdiction Act (Cap 9)Sections 3A and 3B

Cases cited (10)

  • Twiga Motor Limited -vs- Hon. Dalmas Otieno Anyango
    (2015) eKLR
  • Machira & Co. Advocates -vs- Arthur K. Magugu & Another
    [2012] eKLR
  • Kakuta Maimai Hamisi versus Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • Mumo Matemu vs. Trusted Society Of Human Rights Alliance & 5 Others
    Civil Appeal No. 290 of 2012
  • Lubulellah & Associates v Gilbi Construction Company Limited
    [2024] KEELC 4742 (KLR)
  • Savings & Loan (K) Limited vs. Kanyenje Karangaita Gakombe & Another
    (2015) EKLR
  • Dunlop Pneumatic Tyre Co. Ltd -vs- Selfridge & Co Ltd
    [1915] AC 847
  • Agricultural Finance Corporation -vs- Lendetia Ltd
  • Omulele & Tollo Advocates -vs- Mount Holdings Limited
    [2016] eKLR
  • Ahmednasir Abdikadir & Co. Advocates -vs- National Bank of Kenya Limited (2)
    [2006] 1 EA 5
Jurisdiction invoked
Rule 11(2) 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, "Mwangi t/a Karinga Mwangi & Co Advocates v Raei Investment Limited; Wanyama & another (Interested Parties) (Environment & Land Miscellaneous Case E076 of 2023) [2024] KEELC 7398 (KLR)", Case Analysis (2024). Chamber Summons dated 15th January 2023 (Reference against Taxation Ruling dated 14th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7398/eng@2024-10-31

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