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High CourtDismissedMiscellaneous Application No. 204 of 2014 (with Nos. 205 and 206 of 2014)

County Government of Mombasa v Mohamed Faki Khatib (Advocate/Respondent)

High Court of Kenya
1 February 2019
836 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To successfully challenge an advocate's fees, you must provide concrete evidence of when the legal relationship and instructions legally ended.

What this practically means

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Executive summary

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The County Government of Mombasa, as client, moved the High Court by Notice of Motion dated 26/5/2015 seeking consolidation of three files (Nos. 204, 205 and 206 of 2014) and striking out of bills of costs filed by advocate Mohamed Faki Khatib on 25/6/2014 as statute barred under the Limitation of Actions Act and the Public Authorities Limitation Act. The client argued that the County Government did not take over the assets and liabilities of the defunct Municipal Council of Mombasa, relying on Senate Hansard of 8/5/2014 and Transition Authority correspondence. The advocate opposed, contending the application merely sought to frustrate taxation of his fees. The Deputy Registrar, relying on Abincha & Co. Advocates v Trident Insurance, referred the application to the court. Otieno J framed the sole issue as whether the bills were statute barred when filed, a question of fact turning on when the instructions were withdrawn or the retainer ended. The client relied on the bill of costs showing the last act as attendance at a hearing, but produced no evidence of the hearing's outcome or closure of the litigation. Applying the principle that the cause of action for advocates' fees accrues on termination of the action or lawful end of the retainer, and that the client bears the burden of proving the retainer's end, the court found the objection improperly taken without facts and dismissed it with costs. By consent, the decision binds the two companion applications, and all three bills were directed to the taxing master for taxation in the usual manner.

Key legal issues

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01

Whether the bills of costs were statute barred when filed on 25/6/2014

Holding

The objection failed because the client did not adduce evidence of when the instructions were withdrawn or the retainer ended

Reasoning

The court held that a determination must rest on evidence, not hypothesis. The client relied on the bill of costs showing the last action as attendance at a hearing, but no evidence showed what became of that hearing or whether the litigation closed. The burden lay on the client alleging the statutory bar, and in the absence of evidence the court could not determine the date the cause of action accrued.

p. 2

Legal principles established

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  • The cause of action for recovery of advocates' fees accrues on the termination of the action in which the advocate is retained or on the lawful end of the retainer
  • It is the client alleging statutory bar who bears the burden of proving when the retainer ended and the cause of action accrued

Court orders

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  1. 1.The application (objection that the bills of costs are statute barred) dismissed with costs
  2. 2.All three bills of costs (Nos. 204, 205 and 206 of 2014) placed before the taxing master for taxation in the usual manner
Jurisdiction invoked
Inherent jurisdiction of the High Court over taxation of advocate-client bills of costs; the Deputy Registrar referred the application to the court

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, "County Government of Mombasa v Mohamed Faki Khatib (Advocate/Respondent)", Case Analysis (2019). Miscellaneous Application No. 204 of 2014 (with Nos. 205 and 206 of 2014). Source: 

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