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ELRCDismissedChamber Summons dated 24th March 2021 (arising from ELRC Miscellaneous Application No 6 of 2020)· [2021] KEELRC 967 (KLR)

Hakika Transport Services Limited v Isaac Onyango & Company Advocates [2021] KEELRC 967 (KLR)

Employment and Labour Relations Court
23 September 2021
1,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Client, Hakika Transport Services Limited, filed a Chamber Summons dated 24th March 2021 under Rule 11(1) & (2) of the Advocates (Remuneration) Order, Sections 1A and 3A of the Civil Procedure Act and Article 159 of the Constitution, challenging the Taxing Master's award of 29th October 2020 and the Certificate of Costs issued on 3rd November 2020 in ELRC Miscellaneous Application No 6 of 2020. Its sole ground was that the parties had agreed a global fee of Kshs. 200,000 per matter, evidenced by a schedule of fees sent by the Advocate on 15th July 2019 and payments subsequently made. The Advocate denied any agreement, contending the application was procedurally defective, that no objection was raised during taxation, and that the allegations impugned his professional standing by suggesting undercutting. The Court noted the Client had side-tracked the taxation file on a fresh one, denying the Court sight of the proceedings before the Taxing Master. Applying the rule that an issue not raised before the Taxing Master cannot be the subject of an objection at reference, and holding that Article 159 is not a general whitewash for litigation defaults, the Court found that the fee schedule drew no response from the Client until after the Bill was served, and that the payment made was on account of the Bill rather than pursuant to any agreement. The sole ground of objection dissipated and the application was disallowed with costs to the Advocate.

Key legal issues

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01

Whether an agreement on fees existed between the parties capable of defeating the Bill of Costs

Holding

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.

Reasoning

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.

p. 3
02

Whether issues not raised before the Taxing Master can be raised at the objection stage

Holding

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.

Reasoning

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.

p. 2
03

Whether Article 159 of the Constitution permits sidestepping the Rule 11 procedure

Holding

Article 159 does not justify bypassing procedure where doing so would cause substantive injustice to the opposing party.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 24th March 2021 is disallowed with costs to the Advocate

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1) & (2)
  • Civil Procedure ActSections 1A & 3A
  • Constitution of Kenya, 2010Article 159
  • Advocates Act
  • Civil Procedure Rules

Cases cited (6)

  • Kenneth Kiplagat T/A Kiplagat & Associates v National Housing Corporation
    [2005] eKLR
  • Ufundi Co-operative Savings and Credit Society v Njeri Onyango & Company Advocates
    [2015] eKLR
  • Kakuta Maimai Hamisi v Peris Tobiko & others
    [2013] eKLR
  • Njogu & Company Advocates v National Bank of Kenya
    [2016] eKLR
  • Maimai Hamise v Peris Tobiko & others
    [2017] eKLR
  • Pratasio Ndwiga Kathuri v Hakika Transport Services Limited
    Mombasa ELRC No 733 of 2017
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

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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, "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.