Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co. Advocates v Muganda Wasulwa t/a Keysian Auctioneers [2018] KEELRC 1748 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Timeliness of the Reference under Rule 11(2) of the Advocates Remuneration Order
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
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.
Whether the Taxing Officer erred in assessing instruction fees on Kshs 82,972,151/- instead of the compromised sum of Kshs 8,000,000/-
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
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.
Legal principles established
#- 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
#- 1.The application (Reference) dated 9/10 April 2018 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.