Kirwa Jonah t/a mwakio,Kirwa & Co Advocate v County Public Services Board Bomet & another [2021] KEELRC 368 (KLR)
The bottom line
#Bomet County got more time to challenge a Kshs 7.3 million legal fees bill, but paid Kshs 50,000 for its lawyer's repeated filing mistakes.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and abuse of court process
The application is neither res judicata nor an abuse of process despite counsel's multiplicity of mistaken filings, because the earlier application and appeal were withdrawn, not determined on merits; however counsel's conduct amounted to professional negligence and recklessness.
The court found the application dated 21/10/2020 and Civil Appeal No. 1 of 2020 were merely withdrawn, so res judicata, which requires conclusive determination on merits, was inapplicable. The proceedings were also not sub judice as the earlier matters had been withdrawn before the instant application was filed. Nonetheless, counsel's serial errors in constructing the procedure under paragraph 11 of the Advocates Remuneration Order manifested professional negligence and recklessness and abused court processes, though this alone did not justify striking out the application without considering its merit.
Whether extension of time to file a reference out of time was merited
Leave was merited on two sufficient reasons: counsel's mistake in interpreting the plain wording of paragraph 11 of the Advocates Remuneration Order, and the taxing officer's failure to consider the applicants' submissions filed on 30/7/2020 before the ruling.
Relying on Belinda Murai v Amos Wainaina and Gulamhussein Nurmohamed Cassam, the court held that an error by a legal adviser in misinterpreting the plain wording of a rule may build sufficient reason for extension of time. Further, following Trust Bank Ltd v Amalo Company Ltd, the taxing officer was obliged to consider the applicants' submissions which were on record and acknowledged by the registry, despite the ruling's assertion that none had been filed. The combination of these two factors satisfied the court that leave should issue, subject to conditions protecting the respondent's award.
Whether the applicants were condemned unheard in the taxation
Yes - the taxing officer erred in stating no submissions had been filed, since the applicants' submissions of 30/7/2020 were on record and receipt acknowledged by the registry.
The applicants asserted their submissions were filed on 30/7/2020 before the impugned ruling was delivered. The court accepted that the registry acknowledged receipt and ought to have ensured the document was downloaded and placed in the court file. Drawing on the Central Bank of Kenya v Uhuru Highway Development Ltd passage approved in Trust Bank Ltd v Amalo Company Ltd, the court held a party has a right to be heard on documents placed on record, and lateness alone does not justify exclusion.
Legal principles established
#- Res judicata only applies where the same dispute between the same parties has been conclusively determined on merits by a competent court; withdrawn proceedings do not ground the doctrine
- A blunder by counsel in interpreting the plain wording of paragraph 11 of the Advocates Remuneration Order can be a sufficient reason for extension of time under sub-paragraph (4)
- A court is obliged to consider documents filed out of time in response to an application unless there is another reason for exclusion
Court orders
#- 1.The applicants have 14 days of this ruling to file and serve the intended reference against the taxing officer's decision dated 14/10/2020
- 2.The respondent is directed to deposit the sum awarded in the impugned ruling being Kshs.7,338,978.96 in an interest earning account to be opened in the joint names of the Advocates on record for the parties herein, within 21 days of this ruling
- 3.In default by the applicant to comply with (a) and/or (b) above the respondent will be at liberty to execute for the entire sum certified by the Taxing Officer
- 4.If the respondent fails to cooperate in opening the joint bank account the said sum shall be deposited in court
- 5.The applicant is condemned to pay the respondent Kshs. 50,000 within 14 days as throw-costs in respect of the Application
- Jurisdiction invoked
- Paragraph 11(2) of the Advocates Remuneration Order, Article 159(2) of the Constitution of Kenya and the inherent jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirwa Jonah t/a mwakio,Kirwa & Co Advocate v County Public Services Board Bomet & another [2021] KEELRC 368 (KLR)", Case Analysis (2021). Chamber Summons dated 5/6/2021 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/368/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.