[2022] KEHC 12077 (KLR)

Kibuchi & Company Advocates v Kenindia Assurance & Co. Limited (Miscellaneous Civil Application 710 of 2018) [2022] KEHC 12077 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12077 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 710 of 2018

JK Sergon, J

July 1, 2022

Between

Kibuchi & Company Advocates

Applicant

and

Kenindia Assurance & Co. Limited

Respondent

(Emanating from Nairobi CMCC No 1042 of 2007)

Ruling

1. The advocate/applicant filed the advocate-client bill of costs dated December 13, 2018 in the present matter, arising out of Nairobi CMCC no 1042 of 2007.

2. Before the bill of costs could be heard and determined by the taxing master, the client/respondent raised the notice of preliminary objection dated November 1, 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 1064 OF 2007 is time barred given that the suit was finalized on September 29, 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 time of writing this ruling, none of the parties’ submissions; if any; were available on the online portal in respect to the preliminary objection.

4. I have therefore considered the grounds raised in the preliminary objection.

5. It is clear therefrom that the sole issue for determination at this point is whether the bill of costs is time barred.

6. Upon my study of the record, none of the parties is 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.

7. It therefore follows that the proviso of section 4(1) (a) of the Limitation of Actions Act, cap 22 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.

8. 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 Mwangi t/a Mwangi 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…”

9. Upon my study of the record, it is apparent that the judgment in the primary suit was delivered on September 29, 2009. Consequently, the applicant was required by law to lodge its bill of costs before the expiry of six (6) years therefrom, failure to which the bill of costs would be rendered statute barred.

10. It is therefore apparent that the advocate-client bill of costs having been filed on or about the 13th day of December, 2018; and in the absence of any evidence or averments to reflect a different position; is time barred for having been brought more than six (6) years following delivery of the judgment.

11. The notice of preliminary objection dated November 1, 2021 is upheld thus giving rise to issuance of the following orders:a.The advocate-client bill of costs dated December 13, 2018 is hereby struck out and dismissed for being time barred.b.In the circumstances of this case, a fair order on costs is to order which I hereby do that each party meets its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. …………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Advocate/Applicant……………………………. for the Client/Respondent