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High CourtPartially AllowedNot stated in the judgment (relates to Garissa Civil Suit No. 2 of 2012)

Applicant (Client) v Respondent (Advocate) - Reference on Taxing Master's Ruling in Garissa Civil Suit No. 2 of 2012

High Court of Kenya
12 March 2020
4,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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If your lawyer makes procedural mistakes, the court may grant you more time to file your case, and the court will check the math on your bills.

What this practically means

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Executive summary

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This High Court ruling at Garissa determined three interlocutory matters arising from a dispute over a taxing master's decision of 30th May, 2018 in Garissa Civil Suit No. 2 of 2012, in which the advocate (Respondent) was certified Kshs 810,010 payable by the client (Applicant). The Applicant applied under Paragraph 11(2) and (4) of the Advocates (Remuneration) Order 2014 for leave to file a reference out of time, stay of execution, and review of the certified sum, alleging a computational error of Kshs 366,104.95. The Respondent filed a Preliminary Objection arguing the application was res judicata, an earlier similar application having been struck out by Justice Dulu on 10th December, 2018, and a Notice of Motion seeking judgment on the certificate of taxation for Kshs 810,010 plus interest. The court overruled the Preliminary Objection, holding that the earlier application was dismissed for incompetence, not on merit, and therefore could not found res judicata. On extension of time, the court found the delay was caused by counsel's incompetent applications and, applying the principle that mistakes of counsel should not be visited on the client, enlarged time. On the reference itself, the court independently recalculated the taxed costs and found the outstanding balance to be Kshs 50,633.41, not the certified Kshs 810,010 nor the applicant's claimed Kshs 443,905.05. The application succeeded to that extent. The court ordered payment of Kshs 50,634 within 14 days, interest from the date of taxation, dismissed the Preliminary Objection, and made no orders as to costs.

Key legal issues

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01

Whether the Preliminary Objection based on res judicata was merited

Holding

Overruled; the earlier application dated 21st September, 2018 was struck out for incompetence, not determined on merit, so res judicata did not apply

Reasoning

The court applied Section 7 of the Civil Procedure Act, which requires that the matter in issue in the former suit was heard and finally decided. Justice Dulu's ruling of 10th December, 2018 dismissed the earlier application as an abuse of process for being filed while a similar application existed, without a determination on merit. The court also found the objection was a pure point of law fitting the Mukisa Biscuits parameters, but on the merits res judicata failed.

p. 4
02

Whether time should be enlarged for filing the reference out of time

Holding

Enlargement granted; the delay was caused by counsel's incompetent applications and the client should not suffer for counsel's mistakes

Reasoning

Paragraph 11(5) of the Advocates (Remuneration) Order empowers the court to enlarge time even after expiry. The court reviewed the litigation history, found the delay of over a year resulted from counsel wrongly moving the court through incompetent applications, and applied the factors in Edith Gichugu Koine (period and reasons for delay, prejudice, public importance). Balancing justice, the court exercised discretion in favour of the client, noting the respondent could be compensated by costs.

p. 6
03

Whether the reference on the taxing master's computation was merited

Holding

Partially merited; the court's own recalculation found the outstanding balance to be Kshs 50,633.41, not the certified Kshs 810,010 nor the applicant's claimed Kshs 443,905.05

Reasoning

The court independently reviewed the taxing master's ruling and taxation figures. It found the amount taxed off was Kshs 465,000 from a total claim of Kshs 992,264, giving Kshs 527,264; raised by half to Kshs 790,896; plus 16% VAT to Kshs 917,439.36; less Kshs 422,900 already paid, leaving Kshs 494,539.36; less the Kshs 443,905.95 deposited and paid, leaving Kshs 50,633.41 outstanding. The applicant's application succeeded only to that extent.

p. 6

Legal principles established

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  • For a matter to be res judicata, the issue must have been heard and finally decided on merit by a competent court; a dismissal for incompetence does not create res judicata
  • Mistakes of counsel should not be visited upon the client when exercising discretion to enlarge time

Court orders

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  1. 1.The preliminary objection dated 28/8/2019 is dismissed
  2. 2.The balance amount payable is Kshs 50,634 which should be paid within a period of 14 days and in default execution to issue
  3. 3.The interest payable for the amount to accrue from the date the taxing master taxed the bill
  4. 4.No orders as to costs in the instant application and preliminary objection
Jurisdiction invoked
Paragraph 11(2), (4) and (5) of the Advocates (Remuneration) Order 2014

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, "Applicant (Client) v Respondent (Advocate) - Reference on Taxing Master's Ruling in Garissa Civil Suit No. 2 of 2012", Case Analysis (2020). Not stated in the judgment (relates to Garissa Civil Suit No. 2 of 2012). Source: 

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