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)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of the Reference for failure to file a Notice of Objection under Rule 11
The Reference was incompetent because no Notice of Objection was filed identifying the items objected to within 14 days of taxation.
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.
Whether the sale agreement's fee schedule amounted to a retainer agreement under Section 45(6) of the Advocates Act
There was no valid fees agreement to preclude the Advocate from taxing his costs.
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.
Legal principles established
#- 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
#- 1.The Chamber Summons dated the 15th January, 2023 is struck out with costs to the Advocate
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.