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ELCOtherELCMisc (Advocate-Client Bill of Costs taxed at Kshs. 287,604.60; related ELCMisc. E120 of 2003)· [2025] KEELC 536 (KLR)

Achola Jaoko & Co. Advocates v Onsongo (The Administrator – of the Estate of Alice Kemunto Ondieki) & another (Environment and Land Miscellaneous Application E121 of 2023) [2025] KEELC 536 (KLR)

Environment and Land Court
5 February 2025
MMM.D. Mwangi
1,109 words in judgment
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The bottom line

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A Kenyan court ruled that an advocate who accepted a negotiated settlement payment cannot later demand the full taxed amount.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) determined two concurrent applications. The Advocate/Applicant, by a Notice of Motion dated 16th April 2024 under Section 51(2) of the Advocates Act, sought entry of judgment for Kshs. 287,604.60, the taxed Advocate-Client costs certified on 18th March 2024, with interest at 14% per annum from 7th February 2024. The Client/Respondent (Kennedy Obwayo), by an application under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution, sought an order marking the matter as settled. He deposed that after taxation, which together with a related bill in ELCMisc. E120 of 2003 totalled Kshs. 337,663.30, the parties negotiated a full and final settlement at approximately Kshs. 237,664, which he paid and the Advocate accepted. The Advocate denied any compromise, asserting the negotiations were on a without prejudice basis and thus not binding. Framing the sole issue as whether the matter should be marked settled or judgment entered, the court held that the without prejudice rule, though applicable to genuine settlement negotiations per High Chem East Africa Limited v Wambugu (2020) eKLR, is not absolute and may be lifted where justice demands. Since the Advocate accepted and received the negotiated sum, his conduct estopped him from denying the settlement. The matter was marked as settled, the Advocate's application was dismissed, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether a settlement negotiated after taxation, communicated on a without prejudice basis, binds the Advocate who accepted payment of the negotiated amount

Holding

Yes. The correspondence, though without prejudice, was admissible in the interests of justice to explain the payment, and the Advocate's receipt of the agreed sum estopped him from denying the settlement.

Reasoning

The court held that the without prejudice rule, while excluding genuinely settlement-aimed negotiations, is not absolute and may be lifted when justice demands. Here the Client needed to explain why he paid the negotiated figure and no more. The Advocate accepted and received Kshs. 237,664.30, and his conduct of receiving that amount supported the Client's assertion that a full and final settlement existed, estopping him from denying it.

p. 3

Legal principles established

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  • The without prejudice rule applies to exclude negotiations genuinely aimed at settlement
  • The without prejudice rule is not absolute; without prejudice material may be relied upon when the justice of the case so demands
  • Acceptance and receipt of a negotiated payment amounts to conduct creating an estoppel against denying the existence of the settlement

Court orders

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  1. 1.The matter is marked as settled in the terms agreed by the parties
  2. 2.The Advocate's application dated 16th April 2024 seeking entry of judgment is dismissed
  3. 3.Each party bears its own costs of the applications

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Civil Procedure Act 2010Sections 1A, 1B, 3A and 63(e)
  • Constitution of KenyaArticle 159

Cases cited (1)

  • High Chem East Africa Limited v Wambugu
    (2020) eKLR
Jurisdiction invoked
Section 51(2) of the Advocates Act; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act 2010; Article 159 of the Constitution

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, "Achola Jaoko & Co. Advocates v Onsongo (The Administrator – of the Estate of Alice Kemunto Ondieki) & another (Environment and Land Miscellaneous Application E121 of 2023) [2025] KEELC 536 (KLR)", Case Analysis (2025). ELCMisc (Advocate-Client Bill of Costs taxed at Kshs. 287,604.60; related ELCMisc. E120 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/536/eng@2025-02-05

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