Lubulellah & Associates v Gilbi Construction Company Limited (Miscellaneous Application E166 of 2023) [2024] KEELC 7416 (KLR)
The bottom line
#Kenya's High Court confirmed a client cannot limit a lawyer's fees through a contract the lawyer never signed.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to enlargement of time to file a reference against the Taxing Officer's ruling
The delay of about 13 days was neither inordinate nor unreasonable, and the prayer for enlargement of time was merited and allowed.
The court applied the Supreme Court's principles in County Executive of Kisumu on extension of time, noting the applicant filed a Notice of Objection seeking reasons on the day the ruling was delivered and received no response. Applying decisions that a plausible explanation unlocks the court's discretion, and that the period 21st December to 6th January is excluded in computing time, the court found the 13-day delay explained, no prejudice to the respondent, and exercised its unfettered but judicious discretion in the applicant's favour.
Whether the fee provision in the sale agreement between the Respondent and the Purchaser bound the Advocate
The sale agreement, not being executed by the Advocate, does not bind him; the doctrine of privity prevents the Respondent from relying on clause 12 to preclude the Advocate's claim for fees.
The court held that the sale agreement was between the Respondent as Vendor and the Purchaser only. The Advocate, though retained to draft it, was not a party and was not an intended beneficiary. Reliance was placed on Savings & Loan v Gakombe and Dunlop v Selfridge on privity. A fee/retainer agreement under section 45 of the Advocates Act must be in writing and signed by the client; none was adduced, so the Advocate remained entitled to tax his costs.
Whether the Taxing Officer's ruling should be set aside and the bill remitted
The Taxing Officer's ruling was set aside and the Bill of Costs remitted for taxation before a different taxing officer.
Having found the Advocate entitled to enlarge time and that no valid retainer agreement existed to preclude taxation, the court exercised its discretion to allow the Chamber Summons in full, set aside the ruling of 15th December 2023, and remit the bill of costs dated 6th June 2023 for taxation before a different taxing officer.
Legal principles established
#- A contract is only binding on the parties who executed it; an advocate drafting an agreement does not become a party to it by virtue of the doctrine of privity of contract.
- An advocate is precluded from taxing costs only upon proof of a written and signed retainer agreement compliant with section 45 of the Advocates Act.
- Where reasons for taxation are already contained in the ruling, there is no need to seek further reasons before filing a reference; and courts should be hesitant to lock out litigants where delay is not inordinate.
Court orders
#- 1.Extension of time granted to the Advocate/Applicant to file a Reference out of time against the Taxing Officer's ruling delivered on 15th December, 2023
- 2.The Taxing Officer's ruling delivered on 15th December, 2023 is set aside
- 3.The Bill of Costs dated 6th June, 2023 is remitted for taxation before a different taxing officer of this Court
- 4.Chamber Summons dated 12th January, 2024 allowed
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates Remuneration Order (power of the High Court to enlarge time); Rule 11(1)-(4) Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lubulellah & Associates v Gilbi Construction Company Limited (Miscellaneous Application E166 of 2023) [2024] KEELC 7416 (KLR)", Case Analysis (2024). Advocate's Application dated 12th January, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7416/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.