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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 806 (KLR)

Devyan Food Industries Kenya Limited formerly Sammer Agriculture & Livestock (K) Limited v Khalwale & Company Advocates (Miscellaneous Cause E032 of 2021) [2023] KEELRC 806 (KLR)

High Court of Kenya
28 March 2023
MMM. Mbarũ
1,890 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court threw out an advocate's entire legal bill because he filed it without a valid practicing certificate.

What this practically means

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Executive summary

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Devyan Food Industries Kenya Limited, the applicant, brought a chamber summons dated February 20, 2023 under Rule 11 of the Advocates Remuneration Order seeking to set aside the ruling of a Taxing Officer delivered February 9, 2023, which allowed an Advocate-Client Bill of Costs dated April 28, 2022 as drawn. The bill arose from costs awarded in ELRC Cause No 419 of 2014. The applicant, through Paul Maina Advocate, argued that the Taxing Officer ignored its Grounds of Opposition and written submissions, principal among them that the respondent, Khalwale Advocate trading as Khalwale & Company Advocates, held no valid Practicing Certificate for the period September 2021 to April 2022 (and indeed from 2020 to 2022) contrary to Section 9 of the Advocates Act; that sums paid to an unqualified person are recoverable summarily under Section 34(2); that travel expenses were allowed without receipts; and that other items were manifestly excessive. The respondent was served and did not attend; the application was unopposed but oral submissions were heard. Relying on LSK records which, unrebutted, were taken as correct, the court held that filing the bill without a practicing certificate removed the respondent from the benefits of the Advocates Act. Applying National Bank of Kenya Ltd v Wilson Ndolo Ayah and the Kiambu ex-parte decision, and distinguishing the Supreme Court's decision in Anami Silverse Lisamula, the court held that remitting the bill for fresh taxation would perpetuate illegality contrary to the rule of law. The application was allowed, the bill quashed, the ruling set aside, and costs awarded personally against Khalwale Wilberforce Luhombo.

Key legal issues

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01

Validity of a Bill of Costs filed by an advocate without a valid Practicing Certificate

Holding

A Bill of Costs filed during a period when the advocate held no practicing certificate is invalid, and the advocate is removed from the benefits of the Advocates Act

Reasoning

The court relied on records from the Law Society of Kenya showing the respondent held no practicing certificate from 2020 to 2022. As these assertions were unrebutted, they were taken as correct. Drawing on National Bank of Kenya Ltd v Wilson Ndolo Ayah and Republic v Resident Magistrate's Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna, the court reasoned that acts done in pursuance of illegality should be deemed invalid and that remitting the bill for fresh taxation would perpetuate illegality contrary to the rule of law.

p. 4
02

Setting aside a taxation decision under Rule 11 of the Advocates Remuneration Order

Holding

The court has power under Rule 11(2) and (4) to set aside a taxation decision and certificate of costs for good cause; the demonstrated statutory invalidity constituted that good cause

Reasoning

Rule 11 permits an objector to apply to a judge by chamber summons within fourteen days of receiving the taxing officer's reasons. The court emphasised that the essence of such an application is to bring the taxing officer's decision before the court promptly. The applicant's application was unopposed, and the unrebutted proof of the advocate's lack of a practicing certificate supplied good cause for setting aside the ruling of February 9, 2023 and quashing the bill rather than remitting it.

p. 2

Legal principles established

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  • An advocate who files or draws documents without a valid Practicing Certificate is removed from the benefits of the Advocates Act, including the right to act for or receive funds in costs as a practicing advocate
  • Under Rule 11(2) and (4) of the Advocates Remuneration Order, a taxation decision and certificate of costs may be set aside for good cause

Court orders

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  1. 1.Application dated February 20, 2023 is allowed
  2. 2.The Bill of Costs dated April 28, 2022 is quashed
  3. 3.The subsequent ruling delivered on February 9, 2023 is set aside
  4. 4.The person of Khalwale Wilberforce Luhombo shall bear the costs of the application

Authorities

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Legislation

  • Advocates ActSection 9
  • Advocates ActSection 34(1)(a) and 34(2)
  • Advocates Remuneration OrderRule 11(1), (2), (3) and (4)
  • Stamp Duty ActSection 19

Cases cited (4)

  • National Bank of Kenya Ltd v Wilson Ndolo Ayah
    Civil Appeal No 119 of 2002
  • Republic v Resident Magistrate's Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna & 9 others
    [2016] eKLR
  • Anami Silverse Lisamula v IEBC & Others
    Sup Ct Petition No 9 of 2014; [2015] eKLR
  • Amigos Nuts and Commodities Limited v Kam Hung Tsui
    [2020] eKLR
Jurisdiction invoked
Rule 11(2) and (4) of the Advocates Remuneration Order (objection to decision on taxation, applications to a judge by chamber summons)

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, "Devyan Food Industries Kenya Limited formerly Sammer Agriculture & Livestock (K) Limited v Khalwale & Company Advocates (Miscellaneous Cause E032 of 2021) [2023] KEELRC 806 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/806/eng@2023-03-28

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