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ELRCAllowedNot stated in judgment (Notice of Motion dated 20th March 2024)· [2024] KEELRC 2420 (KLR)

Oseko Ouma Advocates LLP v Osman & 628 others (Miscellaneous Application E264 of 2023) [2024] KEELRC 2420 (KLR)

Employment and Labour Relations Court
3 October 2024
LNLINNET NDOLO
1,127 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a law firm's bill of costs because a valid written fee agreement meant the fees could not be taxed.

What this practically means

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Executive summary

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By a Notice of Motion dated 20th March 2024, 629 pensioner Clients sought to strike out an Advocate-Client Bill of Costs dated 10th November 2023 drawn by the firm of Oseko & Ouma Advocates LLP. The Clients contended that their fees were governed by a written agreement dated 12th August 2005 with the late Mr. Mathew Oseko (of Oseko & Co. Advocates), under which each Client paid a deposit of Kshs. 100,000 with a further charge of 10% of damages awarded. As no damages were awarded after the matter was dismissed by the CEO of the Retirement Benefits Authority in April 2021, the Clients argued the fees fell under Section 45 of the Advocates Act, ousting the Taxing Master's jurisdiction, and that they had not been credited for fees already paid. The Advocate opposed, denying any retainer agreement with the present firm, asserting the motion was an abuse of process, and maintaining the court had jurisdiction to tax the Bill, while disputing that the Clients had paid any fees on account. In a further affidavit, the Clients denied ever instructing the new firm. The court held that although the new firm disowned the 2005 agreement, it produced no evidence of fresh instructions, and the only plausible explanation for its coming on record was a takeover of the 2005 fee agreement. Section 45(6) of the Advocates Act therefore barred taxation, rendering the Bill incompetent. The court allowed the motion, struck out the Bill of Costs, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Bill of Costs was competent for taxation given the fee agreement of 12th August 2005

Holding

The Bill of Costs is incompetent as the fees were governed by an agreement falling under Section 45 of the Advocates Act, ousting the Taxing Master's jurisdiction

Reasoning

The Clients instructed Oseko & Co. Advocates under a written fee agreement dated 12th August 2005 providing for deposits and 10% of damages. Though Oseko & Ouma Advocates LLP disowned that agreement, it produced no evidence of fresh instructions. The court concluded the new firm took over the 2005 fee agreement, so the fees fell under Section 45(6), which bars taxation of such costs.

p. 3

Legal principles established

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  • Where costs are chargeable under an agreement contemplated by Section 45 of the Advocates Act, such costs are not subject to taxation

Court orders

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  1. 1.The Clients' Notice of Motion dated 20th March 2024 is allowed
  2. 2.The Advocate-Client Bill of Costs dated 10th November 2023 is struck out
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Taxing Master's jurisdiction under the Advocates Act; taxation of advocate-client Bill of Costs

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, "Oseko Ouma Advocates LLP v Osman & 628 others (Miscellaneous Application E264 of 2023) [2024] KEELRC 2420 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 20th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2420/eng@2024-10-03

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