[2022] KEHC 3051 (KLR)

Kibuchi & Company Advocates v Kenindia Assurance & Co. Limited (Miscellaneous Civil Application 709 & 711 of 2018 (Consolidated)) [2022] KEHC 3051 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3051 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Miscellaneous Civil Application 709 & 711 of 2018 (Consolidated)

JK Sergon, J

May 6, 2022

Between

Kibuchi & Company Advocates

Applicant

and

Kenindia Assurance & Co. Limited

Respondent

Ruling

1. The advocate/applicant in both instances filed the Advocate- Client Bill of Costs dated 13th December, 2018 in Misc. Civil Application No. 709 of 2018 arising out of Nairobi CMCC No. 3564 of 2006 and the Advocate-Client Bill of Costs dated 14th December, 2018 in Misc. Civil Application No. 711 of 2018 arising out of Nairobi CMCC No. 8297 of 2004, separately.

2. Before the respective Bills of Costs could be heard and determined by the taxing master, the client/respondent raised a notice of preliminary objection dated 22nd October, 2021, putting forward the following grounds:a) The Bill of Costs is statute barred, the same having been filed beyond the limitation period set out in Section 4(1) of the Limitation of Actions Act.b) The Advocate’s claim for costs being based on a contract for professional services rendered in Nairobi CMCC No. 3564 of 2006 is time barred given that the suit was finalized on 27th January, 2009 and costs being claimed more than six (6) years after the termination of the suit.c) The taxation proceedings herein are an afterthought and/or abuse of the due process of the court.

3. At the hearing of the preliminary objection, it was agreed between the parties that the orders made in Misc. Civil Application No. 709 of 2018 would apply in Misc. Civil Application No. 711 of 2018, with directions being given for the parties to put in written submissions on the preliminary objection.

4. Going by the record, it is apparent that the respondent on its part did not necessarily touch on the preliminary objection in its submissions but chose to submit on the items contained in the Bill of Costs.

5. I have considered the submissions touching on the issues raised in the preliminary objection, and the respective authorities cited.

6. It is clear therefrom that the sole issue for determination at this point is whether the Bill of Costs is time barred.

7. The applicant is of the view that the preliminary objection is merely a means by the respondent to evade its financial obligations owing to the applicant and an afterthought at that.

8. The applicant is also of the view that the last demand for payment of its legal fees was made on 24th January, 2018 during which the respondent acknowledged receipt of the fee note; and hence time would begin to run at that point.

9. The applicant relies,inter alia, on the case of Shah & Parekh v Kenindia Assurance Company Limited [2019] eKLRwith the court holding that:“Accordingly, having considered the parties’ respective Written Submissions and cases they relied upon, this court was not persuaded that the Respondent had demonstrated or proven that the Applicant’s Bill of costs was statute barred, the fresh cause of action having accrued following the acknowledgment of its claim by the Respondent in the Respondent’s letter dated 24th April 2019. ”

10. Upon my study of the record, none of the parties are disputing the existence of an advocate-client relationship between them at all material times. It is noteworthy that a relationship of such nature is considered contractual.

11. It therefore follows that the proviso of Section 4(1) (a) of the Limitation of Actions Act, Cap. 22 (“the Act”) would apply. The said proviso explicitly stipulates that the limitation period within which a party can institute an action in respect to a contract is not more than six (6) years from the date of the cause of action.

12. The circumstances within which time would begin to run for the recovery of costs by an advocate have been discussed in an array of judicial authorities. Take for instance the reasoning adopted by the respective courts in the case of Kenya Orient Insurance Limited v Oraro & Company Advocates[2014] eKLR and Mercy Nduta MwangiT/aMwangi Kengara & Company Advocates v Invesco Assurance Company Limited [2016] eKLR thus:“In relation to continuous work by a solicitor, such as the bringing and prosecuting or defending an action; 1. 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 of the solicitor;

2. if there is an appeal from the judgment in the action, time does not begin to run against the solicitor, if he continues to act as such, until the appeal is decided;

3. if judgment has been given and there is no appeal, time runs from the judgment, and subsequent items of costs incidental to the business of the action will not take the earlier items out of the statute.

In respect of miscellaneous work done by a solicitor, time under statutory limitation begins to run from the completion of the whole of each piece of work…”

13. Upon my study of the respective Bills of Costs, it is apparent that the respective judgments were delivered on 27th January, 2009 and 31st January, 2012 in Misc. Civil Application Nos.709 of 2018 and 711 of 2018 respectively. Consequently, the applicant was ordinarily required by law to lodge its Bill of Costs in the various matters before the expiry of six (6) years therefrom, failure to which the Bill of Costs would be rendered statute barred.

14. That notwithstanding, I have taken into account the averments by the applicant that it sought payment of its legal fees, with the final demand being made in January, 2018 and receipt of which was acknowledged by the respondent. I note that the respondent has not brought any credible argument or evidence to refute this position, which makes it more plausible than not that a demand for payment was made on the abovementioned date.

15. In the circumstances, I associate myself with the finding arrived at in the case of Shah & Parekh v Kenindia Assurance Company Limited [2019] eKLR cited in the submissions by the applicant, that a fresh cause of action would begin to accrue upon acknowledgment of a claim by the respondent or when the last payment was made, pursuant to the provisions of Section 23(3) of the Act.

16. Ultimately and for all the foregoing reasons, I am not convinced to find that the Bill of Costs in both instances is time barred as it were.

17. Consequently, the notice of preliminary objection dated 22nd October, 2021 is hereby dismissed with costs to the applicant. Furthermore, I hereby direct the parties to take a date before the Deputy Registrar-Civil Division, for purposes of obtaining further directions in respect to the hearing and determination of the respective Bill of Costs dated 13th December, 2018 and 14th December, 2018.

18. The above orders/directions shall apply to Misc. Civil Application No. 711 of 2018 accordingly.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. J.K. SERGONJUDGEIn the presence of:..................for the Advocate/Applicant...................for the Client/RespondentIn Misc. Civil Application No. 709 Of 2018And...................for the Advocate/Applicant.....................for the Client/RespondentIn Misc. Civil Application No. 711 Of 2018