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ELRCDismissedNairobi High Court Misc. Application (Advocate/Client Bill of Costs reference) - reference arising from Advocate/Client Bill of Costs dated 22nd March 2016· [2018] KEELRC 1748 (KLR)

Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co. Advocates v Muganda Wasulwa t/a Keysian Auctioneers [2018] KEELRC 1748 (KLR)

High Court of Kenya (as Taxing Master reference / advocate-client costs)
13 June 2018
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed an auctioneer's challenge to his former advocate's fee, ruling that late objections and later settlements cannot reduce fees already earned.

What this practically means

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Executive summary

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This ruling of the High Court at Nairobi (Radido Stephen, Judge, delivered 13 June 2018) determined a reference by Muganda Wasulwa t/a Keysian Auctioneers against the Taxing Officer's decision of 14 March 2018 taxing the bill of his former advocate, Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co. Advocates, at Kshs 1,736,507/-. The dispute arose after the auctioneer instructed the applicant to tax an advocate/client bill against Letangule & Co. Advocates, which was taxed at Kshs 82,972,151/- on 9 June 2014. After garnishee proceedings, the auctioneer compromised the decretal costs with Letangule & Co. at Kshs 8,000,000/- in January 2016, and was then billed by the applicant. The auctioneer's reference contended that instruction fees should have been assessed on the compromise sum of Kshs 8,000,000/- rather than Kshs 82,972,151/-. The court raised two questions: timeliness under Rule 11(2) of the Advocates Remuneration Order and the alleged error in the assessment. On timeliness, the court held time ran from the taxation ruling of 14 March 2018, and the reference filed on 10 April 2018 was out of time with no leave to enlarge time, applying Evans Thiga Gaturu v Kenya Commercial Bank Ltd, rendering the reference incompetent. Alternatively, on the merits, the court held the Taxing Officer committed no error: the advocate had completed his instructions when the bill was taxed at Kshs 82,972,151/-, and the client's later compromise could not deny the advocate the fruits of his professional labour. The reference was dismissed with costs to the applicant. A separate application by the applicant seeking entry of judgment on the certificate of costs had earlier been dismissed on 2 May 2018 for non-prosecution.

Key legal issues

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01

Timeliness of the Reference under Rule 11(2) of the Advocates Remuneration Order

Holding

The Reference was filed out of time; time ran from the date of the taxation ruling (14 March 2018) since the reasons were contained therein, and no leave to enlarge time was sought, rendering the Reference incompetent

Reasoning

Rule 11(2) requires a dissatisfied party to notify the Taxing Officer within 14 days, whereupon the officer must give reasons forthwith. The Respondent's letter of 26 March 2018 sought reasons; the Taxing Officer responded on 27 March 2018 that the reasons were contained in the ruling of 14 March 2018. Since the anchor ground had been raised and addressed in that ruling, time began running on 14 March 2018 and the Reference filed on 10 April 2018 was out of time, following Evans Thiga Gaturu v Kenya Commercial Bank Ltd.

p. 2
02

Whether the Taxing Officer erred in assessing instruction fees on Kshs 82,972,151/- instead of the compromised sum of Kshs 8,000,000/-

Holding

No error of law or principle: the correct measure was the taxed sum known at the time the advocate completed his instructions, not the client's subsequent private compromise

Reasoning

At the time the applicant was instructed, the sum owing from Letangule & Co. Advocates was definite and known at Kshs 82,972,151/-. The applicant completed his instructions by securing taxation of that sum and a certificate of taxation. The Respondent's later consent compromising the decretal at Kshs 8,000,000/- was entered into after the advocate had parted ways. Allowing the client to rely on that compromise would be unconscionable and would deny the advocate the fruits of his professional labour.

p. 3

Legal principles established

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  • Time under Rule 11(2) of the Advocates Remuneration Order begins to run from the date of the taxation ruling where the reasons objected to are contained in that ruling
  • An advocate who has substantially executed instructions is entitled to have fees assessed on the value of the subject matter at the time of taxation, and a client's later compromise of the decretal sum cannot defeat the advocate's fees

Court orders

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  1. 1.The application (Reference) dated 9/10 April 2018 is dismissed
  2. 2.Costs of the application to the applicant
Jurisdiction invoked
Reference under Rule 11 of the Advocates Remuneration Order against a Taxing Officer's decision

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, "Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co. Advocates v Muganda Wasulwa t/a Keysian Auctioneers [2018] KEELRC 1748 (KLR)", Case Analysis (2018). Nairobi High Court Misc. Application (Advocate/Client Bill of Costs reference) - reference arising from Advocate/Client Bill of Costs dated 22nd March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1748/eng@2018-06-13

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