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ELRCStruck OutAdvocate/Client Bill of Costs (Notice of Motion dated 30th July 2020)· [2020] KEELRC 233 (KLR)

J.M. Njenga & Co Advocates v Monica Wambui Kamau & 3 others [2020] KEELRC 233 (KLR)

High Court of Kenya
18 November 2020
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an advocate's attempt to make a third party pay a Kshs.46 million fee bill because the right request was never made in the original case.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th July 2020 under Sections 2 and 50(1) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules, the advocate/applicant sought orders deeming Jacob Kamau Kahiu a client, jointly and severally liable with the 1st Respondents for a bill of costs of Kshs.46,742,169/= arising from the parent suit, Mombasa ELC No. 161 of 2013 (Monica Wambui & Another v Golden Sparrow Trading Ltd & 3 Others), and enjoining him as a Respondent for purposes of taxation. The applicant contended that Kahiu had instructed the firm, had an interest in the suit property MN/VI/755, made an initial fees deposit of Kshs.250,000/=, executed a formal fee agreement, a Memorandum of Understanding and a power of attorney obliging him to cater for legal costs. Justice C.K. Yano considered the definition of 'client' under Section 2 of the Advocates Act and the provisions of Section 50(1), and, guided by Kamau Kuria & Company Advocates v Lucy Nyambura Kinyanjui (Muchelule, J), held that an advocate seeking to have costs borne by a third party must obtain a court order in the parent matter to that effect. Further, any joinder should have been pursued in the parent matter under Order 1 of the Civil Procedure Rules. The court concluded the application was improperly before it, struck it out, and made no order as to costs.

Key legal issues

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Whether the taxation court can deem a non-party a client and liable for costs under Sections 2 and 50 of the Advocates Act

Holding

No. The applicant should have obtained an order in the parent suit (ELC Case No. 161 of 2013) that its costs be borne by Jacob Kamau Kahiu, and any joinder should have been sought in the parent matter under Order 1 of the Civil Procedure Rules; the court exercising taxation jurisdiction was not competent to grant the orders sought.

Reasoning

Section 50(1) allows a person other than the party chargeable with a bill to apply for taxation where liable to pay or interested in property from which the bill is payable. Following Kamau Kuria, the court held the section requires a prior court order allocating liability to the third party. The intended 2nd Respondent was not a party to the parent file; despite the Kshs.250,000/= deposit, agreements and power of attorney exhibited, the proper forum for joinder and costs allocation was the parent matter, not the taxation reference.

p. 3

Legal principles established

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  • Under a contract of retainer, only the client is liable to pay fees to the advocate retained (as stated in Kamau Kuria & Company Advocates -v- Lucy Nyambura Kinyanjui)
  • Where an advocate seeks that fees be borne by a third party under Section 50 of the Advocates Act, the advocate must obtain a court order in the parent matter to that effect

Court orders

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  1. 1.The Notice of Motion dated 30th July 2020 is struck out with no order as to costs

Authorities

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Legislation

  • Advocates Act (Cap 16)Section 2
  • Advocates Act (Cap 16)Section 50(1), (2), (3)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 1
  • Civil Procedure ActSection 27

Cases cited (2)

  • Kamau Kuria & Company Advocates -v- Lucy Nyambura Kinyanjui & 2 Others
    (2019) eKLR
  • Roy Dean -v- Allin and Watts (A Firm)
    (2001) EWCA Civ. 758
Jurisdiction invoked
Sections 2 and 50(1) of the Advocates Act (Cap 16) and Order 51 Rule 1 of the Civil Procedure Rules

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, "J.M. Njenga & Co Advocates v Monica Wambui Kamau & 3 others [2020] KEELRC 233 (KLR)", Case Analysis (2020). Advocate/Client Bill of Costs (Notice of Motion dated 30th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/233/eng@2020-11-18

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