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ELRCDismissedChamber Summons dated 24th March 2021 (ELRC Miscellaneous Application No 5 of 2020 taxation referred)· [2021] KEELRC 999 (KLR)

Hakika Transport Services Limited v Isaac Onyango & Company Advocates [2021] KEELRC 999 (KLR)

Employment and Labour Relations Court
23 September 2021
1,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan client lost its bid to overturn a taxed legal fees bill because it never objected to the Taxing Master first and couldn't prove a fee agreement existed.

What this practically means

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Executive summary

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The Client, Hakika Transport Services Limited, applied by Chamber Summons dated 24th March 2021 to challenge the Taxing Master's award of 29th October 2020 and the Certificate of Costs issued on 3rd November 2020 in favour of Isaac Onyango & Company Advocates. The Client's sole ground was that the parties had agreed a global fee of Kshs. 200,000 per matter under an oral retainer covering several labour disputes, which had been paid; the Taxing Master therefore erred in taxing the Bill. The Advocate objected to the application as defective, filed as a standalone application rather than a reference under Rule 11 of the Advocates (Remuneration) Order, denied any fee agreement, and asserted that the issues now raised were never raised at taxation. The Court noted that the Client had side-tracked the taxation file, denying the Court sight of the taxation proceedings, and applied the principle that an issue not raised before the Taxing Master cannot form the basis of an objection at reference. The Court held that a fee agreement may be inferred from a series of correspondence, but here the Client remained silent for nearly a year after receiving the fee schedule and paid only after the Bill of Costs was served, indicating payment on account of the Bill rather than under an agreement. The alleged agreement was therefore not established. Article 159 could not cure the procedural default. The application was dismissed with costs to the Advocate.

Key legal issues

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01

Whether the Client could challenge the Taxing Master's award on the basis of an alleged global fee agreement not raised at taxation

Holding

The application failed because the alleged agreement was not established on the evidence and the objection was improperly brought.

Reasoning

Rule 11 requires an objector to identify items objected to and obtain the Taxing Master's reasons before a reference. The Client filed a fresh application on a separate file, depriving the Court of the taxation proceedings, and had raised no objection at taxation. On the merits, the Client's silence for nearly a year after the fee schedule, followed by payment only after the Bill was served, pointed to payment on account of the Bill, not an agreed fee.

p. 3
02

Whether Article 159 could cure the Client's procedural default

Holding

Article 159 does not excuse every procedural rule; the Client's procedural missteps could not be side-stepped.

Reasoning

The Court accepted the principle that substantive justice matters, but held that not every rule of procedure may be disregarded without injustice to the other side. The Respondent relied on authority that Article 159 is not a magic bullet for litigation defaults, and the Court aligned itself with that view in refusing to overlook the defects.

p. 2

Legal principles established

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  • An issue that was not raised before the Taxing Master cannot be the subject of an objection at reference
  • An agreement on fees may be construed from a series of correspondence between advocate and client; absent such exchange, no agreement arises

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 ActNot specified

Cases cited (5)

  • 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
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 999 (KLR)", Case Analysis (2021). Chamber Summons dated 24th March 2021 (ELRC Miscellaneous Application No 5 of 2020 taxation referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/999/eng@2021-09-23

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