Hakika Transport Services Limited v Isaac Onyango & Company Advocates [2021] KEELRC 967 (KLR)
The bottom line
#A Kenyan court threw out a client's challenge to a lawyer's bill because the client never raised objections during the actual taxation process.
What this practically means
#Executive summary
#Key legal issues
#Whether an agreement on fees existed between the parties capable of defeating the Bill of Costs
No agreement on fees existed. The schedule of fees sent on 15th July 2019 drew no response from the Client until the Bill of Costs was served, and the payment made on 26th June 2020 was properly construed as payment on account of the Bill of Costs.
The Court noted that correspondence between advocate and client may evidence an agreement on fees. Here the Advocate sent a schedule of fees on 15th July 2019 but the Client made no response until the Bill of Costs was lodged and served on 19th June 2020. The payment made on 26th June 2020, nearly a year after the schedule, was reasonably explained as payment on account of the Bill of Costs. The sole ground of objection therefore dissipated.
Whether issues not raised before the Taxing Master can be raised at the objection stage
An issue not raised before the Taxing Master cannot be the subject of an objection at reference; the Client never objected during taxation nor requested referral of any issue to a Judge.
The Court cited the decision in Kenneth Kiplagat v National Housing Corporation for the rule that issues not raised before the Taxing Master cannot ground an objection at reference. The Respondent pointed out that during taxation on 20th August 2020 the Client raised none of the present issues, did not object, and failed to file submissions despite being granted time. The Client also side-tracked the taxation file, denying the Court sight of the proceedings.
Whether Article 159 of the Constitution permits sidestepping the Rule 11 procedure
Article 159 does not justify bypassing procedure where doing so would cause substantive injustice to the opposing party.
The Client urged the Court to ignore procedural technicalities in favour of substantive justice. The Court held that while Article 159 commands attention to substantive justice, not every rule of procedure can be side-stepped without rendering substantive injustice to the opposing party, and cited authority that Article 159 is not a magic bullet for litigation defaults.
Legal principles established
#- An issue that is not raised before the Taxing Master cannot be the subject of an objection at reference.
- Article 159 of the Constitution (procedural technicalities) is not a general whitewash for litigation defaults.
- An agreement on fees between an advocate and client may be construed from a series of correspondence between them.
Court orders
#- 1.The application dated 24th March 2021 is disallowed with costs to the Advocate
- Jurisdiction invoked
- Rule 11(1) & (2) of the Advocates (Remuneration) Order, Sections 1A & 3A of the Civil Procedure Act and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hakika Transport Services Limited v Isaac Onyango & Company Advocates [2021] KEELRC 967 (KLR)", Case Analysis (2021). Chamber Summons dated 24th March 2021 (arising from ELRC Miscellaneous Application No 6 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/967/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.