Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtOther

Advocate (Applicant) v Insurance Company (Respondent) - Preliminary Objection to Bill of Costs re Gatundu SPMCC No. 200 of 2005

High Court of Kenya
7 November 2019
1,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Filing a bill for legal fees must happen within six years of the work ending, regardless of ongoing general retainer status.

What this practically means

#

Executive summary

#
The Respondent raised a preliminary objection against the Applicant advocate's Bill of Costs filed on 20th April 2017, seeking recovery of legal fees and expenses for defending Gatundu SPMCC No. 200 of 2005, on the ground that the bill was time barred under the Limitation of Actions Act. The Applicant opposed, arguing the objection was misconceived and technical, that a 2010 consent between the parties had frozen payment of legal fees, and that because the firm remained on the Respondent's panel of advocates the retainer had not terminated and time had not begun to run. The Applicant conceded the ratio in Abincha & Co. Advocates v Trident Insurance Co. Ltd but urged each matter be decided on its facts. The Respondents relied on Section 4(1)(a) of the Limitation of Actions Act, noting judgment in the Gatundu case was delivered in 2006 and the bill filed ten years later could not stand. Applying Halsbury's Laws (4th Ed, Vol 28) on solicitor's costs, Meoli J held that where judgment has been given and there is no appeal, time runs from the judgment. Even excluding the one-year fee freeze in the alleged 2010 consent - whose efficacy to suspend statutory time the court doubted - the 2017 filing fell outside the six-year period. The continued general retainer was irrelevant since the bill related to a specific concluded suit. The preliminary objection was upheld with costs to the Respondents.

Key legal issues

#
01

Commencement of limitation for advocate's costs

Holding

Time runs from termination of the action (entry of judgment where no appeal) or lawful ending of the retainer, not from delivery of the bill

Reasoning

Adopting Halsbury's Laws (4th Ed, Vol 28, para 879), the court held that for continuous solicitor's work such as defending an action, limitation begins on termination of the action or retainer. Judgment was delivered in 2006; the bill came in 2017, well beyond six years.

p. 2
02

Effect of the alleged 2010 consent freezing legal fees

Holding

Even assuming parties could suspend statutory time by consent for the stated one year, the bill still fell outside the limitation period

Reasoning

The court noted the consent (latest communication dated 17th May 2010) came about four years after judgment. It expressed doubt whether parties can suspend effluxion of statutory time, but even excluding the one-year freeze the 2017 filing remained time barred.

p. 2
03

Ongoing general retainer as an answer to limitation

Holding

Continued listing on the client's panel of advocates is irrelevant; the reference point is the specific suit's bill of costs

Reasoning

The court held the Applicant could not rely on the general retainer because the bill related only to Gatundu Civil Case No. 200 of 2005. Following Abincha & Co. Advocates v Trident Insurance Co. Ltd, the bill filed over six years after completion of that work is statute barred.

p. 2
04

Whether the preliminary objection raised a pure point of law

Holding

Yes - time bar under the Limitation of Actions Act is a pure point of law sustaining a preliminary objection

Reasoning

The Respondents argued, per Mukisa Biscuits, that the objection raised the pure point of law that the bill was time barred. The court's upholding of the objection on the statute alone confirms it was disposed of as a point of law without evidence.

p. 1

Legal principles established

#
  • A bill of costs filed more than six years after completion of the work an advocate was retained to do, or after termination of the retainer in respect of such work, is statute barred under Section 4(1)(a) of the Limitation of Actions Act
  • Where judgment has been given in the action and there is no appeal, limitation time runs from the judgment, and continued presence on a client's general panel of advocates does not keep a claim for costs in that specific suit alive

Court orders

#
  1. 1.The preliminary objection is upheld
  2. 2.The Bill of Costs filed on 20th April 2017 is found to be time barred
  3. 3.Costs of the preliminary objection awarded to the Respondents
Jurisdiction invoked
Original jurisdiction over taxation of advocate-client Bill of Costs; preliminary objection under Section 4(1)(a) of the Limitation of Actions Act and Article 159(2)(d) of the Constitution raised

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Advocate (Applicant) v Insurance Company (Respondent) - Preliminary Objection to Bill of Costs re Gatundu SPMCC No. 200 of 2005", Case Analysis (2019). . Source: 

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