1.Kibuchi & Co. Advocates (the Applicant) filed a Bill of Costs dated 14th December, 2018 against Kenindia Assurance Company Limited (the Respondent). When the bill of costs came up for taxation, the Respondent raised a preliminary objection on grounds that the bill was statute-barred, the same having been filed outside the limitation period stipulated in Section 4(1) of the Limitation of Actions Act; that the Advocate’s claim for costs being one based on a contract for professional services rendered in Nairobi CMCC No. 8989 of 2005 (hereafter the primary suit) , is time-barred as the said suit was finalized on 17th September 2007 ; and that the claim for costs lodged more than six years after the conclusion of the suit amounted to an abuse of the process of the court.
2.The preliminary objection was canvassed by way of written submissions. The Respondent asserted that the relationship between an advocate and client created through a retainer agreement was a contract for services which is enforceable within six years after completion of the work as provided under section 4(1) the Limitations of Actions Act. While citing a host of decisions including Abincha & Company Advocates v Trident Insurance Company Limited  eKLR, Akide & Company Advocates v Kenindia Assurance Co. Ltd  eKLR, Migos Ogamba & Co. Advocates v Kenindia Assurance Co. Ltd  eKLR and Martin Mugambi Mithega t/a Mithega & Kariuki v Invesco Assurance Company Ltd  eKLR the Respondent emphasized that judgment in the primary suit was entered on 17th September 2007, and that the Applicant filed the bill of costs on 20th December 2018, some eleven years after the primary suit was concluded and that the claim was caught up by the six year limitation period under statute. Consequently, it was counsel’s submission that the bill of costs is statute barred and ought to be dismissed with costs.
3.Counsel for the Applicant in opposing the preliminary objection cited the decision in Galaxy Paints Company Limited v Falcon Guards Limited Court of Appeal Case No. 2019 of 2018 in contending that the objection raised by the Respondent was a mere technicality intended to help them escape making payment on costs due to the Applicant. He also cited Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited concerning the definition of a preliminary objection.
4.Counsel argued that the bill of costs was not time barred, while asserting that since the completion of the primary suit, the Applicant had sent countless demand letters to the Respondent for settlement of the fees. He took the position that the cause of action accrued afresh on 28th January 2013 , the date of the final demand letter to the Legal Manager of the Respondent which letter was acknowledged. Thus, the filing of the bill of costs in 2018 was within the time prescribed by statute. In support of the submission, counsel called to his aid the decision in Shah & Parekh v Kenindia Assurance Company Misc. 110 of 2018 and contended that the authorities cited by the Respondent in support of the objection were inapplicable to the instant matter. He concluded by stating that it would not be in the interest of justice for the Applicant to be denied the fruits of their labour having duly executed their professional responsibilities by representing the Respondent in the primary suit.
6.In the case of Oraro v Mbaja (2005) KLR 141, Ojwang J (as he then was) reiterated the foregoing by stating that;
7.The Respondent’s preliminary objection is premised on Section 4(1) of the Limitation of Actions Act, which states as follows: -
8.First, it is pertinent to observe that a preliminary objection based on limitation is not a technicality but a matter that goes to the root of the Court’s jurisdiction; no court has jurisdiction to hear a matter that is time barred. The Court of Appeal in Thuranira Karauri Vs. Agnes Ncheche  eKLR held that:
9.In seeking to determining whether the bill of costs was filed out of time the court must contemporaneously determine when the cause of action arose. There is no dispute that the advocate’s claim for costs is based on the contract for professional services between him and the client and that judgment in the primary suit was delivered on 17th September 2007. That is when the work was completed and the enforcement the contract by way of an action was subject to the limitation period as set out in section 4(1) (a) of the Limitation of Actions Act. Thus, the Applicant’s claim being one based on a contract for professional services rendered, ought to have been filed by way of a bill of costs or otherwise, within a period of six years upon the accrual of the cause of action, namely the date of completion of the work on 17th September 2007.
10.This court agrees with Waweru J. in Abincha & Co Advocates v Trident Insurance Co Ltd  eKLR where he stated inter alia that:
11.The foregoing accords with Halsbury’s Laws of England, 4th Edition , Volume 28 at Paragraph 879 where it is stated concerning when time starts to run that:
12.The judgment in the primary suit in respect of which the Applicant had received instructions from the Respondent to defend having been entered on 17th September 2007 the Applicant only filed the bill of costs on 20th December 2018, some eleven years after the primary suit was concluded. Sections 23 (3) and 24 (1) of the Limitations Act which the Applicant has called to his aid are of no avail in this case. An acknowledgement of debt as envisaged in the sections and pursuant to the provisions of 25(5) is the equivalent of an admission of debt. According to Black’s Law Dictionary, Tenth Edition an acknowledgement of debt is:
13.The Applicant’s submission in this regard was that by the fact of the Respondent “acknowledging the receipt of the letter dated above (i.e. letter dated 28 th January 2013), there was a fresh accrual of the right of action against the Respondent…”. This proposition is contrary to the clear provisions of sections 23, 24 and 25 of the Limitation of Actions Act which do not contemplate an act of acknowledgement of receipt of a demand letter as an acknowledgement of the debt claimed by such letter. In my view, the proposition conjures absurd outcomes where a mere acknowledgement of receipt of a demand letter would be construed as synonymous with an acknowledgment of the debt claimed by such letter, and to provide a defence against the plea of limitation.
14.The facts in the case of Shah & Parekh v Kenindia Assurance Company Limited cited by the Applicant are distinguishable from those in the instant matter, in that in the former case, an acknowledgement of debt in keeping with section 23(3) and 24(1) and (2) of the Limitation of Actions Act had been communicated in writing by the client to the Advocate and payment made on the acknowledged debt. The Applicant cannot rely on that decision in this instance and the argument that a fresh cause of action had accrued in 2013 therefore falls flat on its face.
15.In the result, the court finds that the preliminary objection raised by the Respondent has merit and it is hereby upheld. The Applicant’s bill of costs is time barred and incompetent by dint of the provisions of section 4(1) (a) of the Limitation of Actions Act. A taxing master would have no jurisdiction to entertain it. The bill of costs dated 14th December 2018 is therefore struck out with costs to the Respondent.