[2021] KEHC 3369 (KLR)
The court found that the advocate-client relationship was contractual and that the cause of action for costs accrued at the termination of the action, which was the date of judgment—29th July 2004. The Bill of Costs was filed more than eleven years after this date, exceeding the six-year limitation period prescribed...
Source-derived case information.
- Citation
- [2021] KEHC 3369 (KLR)
- Parties
- Plaintiff: Akide & Co. Advocates; Defendant: Kenindia Assurance Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 546 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; bill of costs struck out as statute barred
- Judges
- JK Sergon
- Legal Topics
- Limitation Periods, Advocate Client Costs, Preliminary Objection, Contractual Relationships
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Akide & Co. Advocates
Plaintiff
Kenindia Assurance Company Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the advocate-client Bill of Costs filed by the plaintiff is statute barred under the Limitation of Actions Act.
- 2 Whether the preliminary objection raised by the defendant qualifies as a proper preliminary objection.
Ratio Decidendi
The court found that the advocate-client relationship was contractual and that the cause of action for costs accrued at the termination of the action, which was the date of judgment—29th July 2004. The Bill of Costs was filed more than eleven years after this date, exceeding the six-year limitation period prescribed by Section 4(1) of the Limitation of Actions Act. The court held that the Bill of Costs was therefore statute barred and incompetent. The preliminary objection was upheld, and the Bill of Costs was struck out. Each party was ordered to bear their own costs.
Court Disposition
preliminary objection upheld; bill of costs struck out as statute barred
Orders
- The plaintiff’s Bill of Costs is struck out for being incompetent and statute barred.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC. APP. NO. 546 OF 2015
AKIDE & CO. ADVOCATES................................................... PLAINTIFF
VERSUS
KENINDIA ASSURANCE COMPANY LTD...................... DEFENDANT
RULING
1) The subject matter of this ruling, is the notice of preliminaryobjection dated 21stApril 2021 raised by Kenindia Assurance Co.Ltd, the defendant herein.
2) The defendant is of the submission that the advocate-client Billof Costs filed by the firm of Akide & Co. Advocates the plaintiff herein is time barred. The plaintiff opposed the preliminary objection arguing that the relationship of the parties did not end at the date of delivery of judgment.
3) The plaintiff alluded that time would begin to run from the dateof execution of the decree. The plaintiff also pointed out that the notice of preliminary objection does not qualify to be regarded as a preliminary objection because evidence will be required to be tendered to establish certain facts.
4) Having considered the rival submissions, it is apparent thatcertain facts are not disputed.First, is that the plaintiff was instructed to act for the defendant inNairobi R.M.C.C.C no. 4257 of 2003 Duncan Mwangangi =vs= Laxmanbhai Construction Ltd.
5) Secondly, that judgment in Nairobi R.MC.C.C. no. 4257 of 2003was delivered on 29thJuly 2004.
6) Thirdly, that the instant Bill of Costs dated 15th May 2015 wasfiled on 4thDecember 2015.
7) Fourth, that no appeal has been preferred against the aforesaidjudgment.
8) The question which this court is required to determine is whetherthe instant Bill of Costs is statute barred. There is no doubt that the relationship between the plaintiff and the defendant is contractual. The cause of action expires at the lapse of six years from the date when it arose.
9) In Halsbury’s Laws of England 4th Edition, vol. 28 para. 879P. 452it is stated inter alia:
“In relation to continuous work by a solicitor, such as the bringing and prosecuting or defending an action
(i) if a solicitor sues for his costs in an action, the statute of limitation only begins to run from the date of termination of the action or of the lawful ending of the retainer...............................”
10) In this matter, judgment was delivered on 29th July 2004. Timetherefore begun to run as from the date of judgment. By the time the Bill of Costs was filed eleven (11) years had passed.
11) Under Section 4(1) of the Limitation of Actions Act, an actionfounded on contract may not be brought after the end of six yearsfrom the date when the cause of action accrued.
12) It is therefore clear that the defendant’s notice of preliminaryobjection has merit. The plaintiffs’ Bill of Costs is therefore statute barred.
13) The Preliminary Objection is upheld. Consequently, theplaintiff’s Bill of Costs is hereby ordered struck out for being incompetent. In the circumstances of this case, a fair order on costs is to order which I hereby do that each party shall bear their own costs.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2021.
.............................
J. K. SERGON
JUDGE
In the presence of:
…………………………………. for the Plaintiff
…………………………………. for the Defendant