1.The application is dated 30th August 2023 under Rule 11 (1) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act seeking the following orders;1.That the Decree by the Deputy Registrar/Taxing Master made on 23rd August 2023 be set aside.2.That the Cost of this Application be provided for.
2.It is made on the grounds that the Deputy Registrar/Taxing Master did not have Jurisdiction to hear and determine the objections made by the Respondent to the Applicant's Bill of Costs. It is only by a Judge who is seized with jurisdiction to hear the said objections. A Bill of Costs is not an 'Action' to which section 4 of the Limitation of Actions could have applied.
3.The Respondent stated that being an Advocate Clients Bill of Costs with no record of the transactions it was indeed imperative that the Applicant files in these proceedings the relevant material culminating to the subject bill of cost including copies of the documents and pleadings and correspondences issued in execution of the alleged instructions, including the instructions note, an onus the Applicant has f ailed and or declined to discharge, an explicit indication of devoid of instructions on their part. That in the absence or the requisite lawful instructions the Applicant herein was indeed bereft of the requisite locus standi to institute the proceedings of instance.
4.That the Bill or costs is incurably and time barred having been filed more than six (6) years from the end or the Advocate-Client relationship and as such had been caught up the Limitations of Actions Act. Cap. 22 Laws of Kenya and consequently the Application is an abuse or the court process and it should be dismissed on the face of it. Further, that the Bill of Costs or instance otherwise the subject of reference herein is null and void within the provision of section 4 of the Limitation of Actions Act, having been filed more than 10 years after the alleged finalization to- the primary suit and or execution of the alleged instructions bearing in mind that the defunct Municipal Council or Mombasa ceased to exist in 2010 upon promulgation or the New Constitution 2010 as well as County Governments' Act 2012 and since the relationship between the and client is contractual and within the provisions of Law of Contract Act.
5.This court has considered the application and the submissions therein. The procedure for the challenge of a Taxing Master's decision is provided under Rule 11 of the Advocates Remuneration Order which provides as follows:
6.The Respondent had raised a preliminary objection opposing the bill of costs before the taxing master on the ground that it is statute barred. An objection on the ground that a matter is caught up by the law of limitation of actions is a pure point of law as was held by Law JA in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696:
7.The taxing master determined that the advocate-client bill of costs wass incompetent for being time barred and stuck it out. The Applicant has now brought this reference before me.
8.A relationship between an advocate and his or her client is a contractual relationship for professional services. The Court of Appeal in the case of Omulele & Tollo Advocates vs Mount Holdings Limited (2016) eKLR while discussing the difference between a retainer and retainer agreement defined retainer in the following terms;
9.Such a relationship is therefore subject to the Limitation of Actions Act, specifically Section 4 (1) of the Limitation of Actions Act which provides that an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued.
10.In the case of Abincha & Co Advocates vs Trident Insuarance Co. Ltd (2013) eKLR, considered the question of when does time start to run in an action for recovery of legal fees quoted with approval Halsbury’s Laws of England 4th Edition Volume 28 page 452 at paragraph 879 where the learned authors state as follows:
11.In the present case, the Respondent does not dispute having instructed the Applicant to defend its interests. Their case is that the Applicant’s bill of costs is time barred having being brought after 6 years. As I have ruled in similar cases I find that the statute of limitation only begins to run from the date of termination of the action or of the lawful ending of the retainer of the advocate. On perusal of the record I find various letters way past 2009 between the parties on the issue of payment of fees to the Applicant. The Applicant has attached a rate cases letter dated 27th October 2010, two letters of list of property rates defaulters dated 12th January 2011 and 14th January 2011 and another rates cases letter dated 2nd August 2013. I find that the Taxing Master erred when he found that that the last service in the bill of cost signalled the end of the retainer. I find that there is no evidence before this court that the retainer had been terminated in 2009 and in the absence of such information this court cannot proceed on the assumption that the bill was filed outside the limitation period. For the foregoing reasons, I find that the application is merited and I grant the following orders;1.That the ruling by the Deputy Registrar/Taxing Master made on 23rd August 2023 be set aside.2.The bill of costs to be taxed by a different Taxing Master.3.Each party to bear its own costs.
It is so ordered.