[2017] KEHC 4934 (KLR)

[2017] KEHC 4934 (KLR)

The court held that the limitation period for an advocate's claim for costs does not begin to run immediately upon the death of the client, but rather from the date the retainer lawfully ends. In this case, the retainer ended when the suit abated for non-substitution, which was one year after the plaintiff's death. There was no evidence that the retainer ended earlier. Therefore, the bill of costs filed by the applicant was not time-barred, as the limitation period commenced only after the suit abated, not from the date of death. The preliminary objection by the respondent was dismissed, and the matter was determined in favour of the applicant.

Citation
[2017] KEHC 4934 (KLR)
Parties
Applicant: Otieno, Ragot & Company Advocates; Respondent: Gabriel Ndolo
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
6 April 2017
Case Number
Miscellaneous Civil Application 45 of 2015
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed; application determined in favour of the applicant
Judges
TW Cherere
Legal Topics
Limitation of Actions, Advocate Client Costs, Retainer Termination, Bill of Costs, Preliminary Objection
Source Language
English
Civil Procedure Limitation of Actions Advocate Client Costs Retainer Termination Bill of Costs Preliminary Objection

Case Brief

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Parties

Otieno, Ragot & Company Advocates

Applicant

Gabriel Ndolo

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the applicant's bill of costs is time-barred under section 4(1)(a) of the Limitation of Actions Act.
  2. 2 When time begins to run for purposes of limitation in respect of an advocate's claim for costs after the death of a client.

Ratio Decidendi

The court held that the limitation period for an advocate's claim for costs does not begin to run immediately upon the death of the client, but rather from the date the retainer lawfully ends. In this case, the retainer ended when the suit abated for non-substitution, which was one year after the plaintiff's death. There was no evidence that the retainer ended earlier. Therefore, the bill of costs filed by the applicant was not time-barred, as the limitation period commenced only after the suit abated, not from the date of death. The preliminary objection by the respondent was dismissed, and the matter was determined in favour of the applicant.

Court Disposition

preliminary objection dismissed; application determined in favour of the applicant

Orders

  • The Preliminary Objection filed on 30th June 2015 is determined in favour of the applicant.