Akide & Company Advocates v Kenindia Assurance Co. Limited [2022] KEHC 1581 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. APPLICATION NO. 20 OF 2016

AKIDE & COMPANY ADVOCATES.....................................................................APPLICANT

VERSUS

KENINDIA ASSURANCE CO. LIMITED.........................................................RESPONDENT

RULING

1.   The applicant in the present instance filed the Advocate-Client Bill of Costs dated 10th April, 2015 on 14th January, 2016.

2.   Before the Bill of Costs could be heard for purposes of taxation, the respondent filed the notice of preliminary objection dated 19th April, 2021 which is now the subject of this ruling.

3.   In the aforementioned preliminary objection, the respondent is challenging the competency of the Bill of Costs on the premise that it is time barred, having been brought 13 years after delivery of judgment on 21st February, 2003 in Milimani CMCC NO. 6446 OF 2002 (Ooga Asoro Samuel v Athi River Steel Plant Ltd).

4.  The court directed that the preliminary objection be dispensed with through the filing and exchanging of written submissions. At the time of writing this ruling, only the submissions by the respondent had been availed for this court’s reference.

5.  I have considered the grounds laid out in the notice of preliminary objection and the written submissions filed by the respondent plus the authorities relied upon.

6.  It is clear that the sole issue for consideration is that of limitation.

7.  On its part, the defendant submits that the parties herein enjoyed a contractual relationship at all material times and hence the provisions of Section 4(1) of the Limitation of Actions Act Cap. 22 Laws of Kenya (“the Act”) which prescribe that actions founded on contract ought to be brought within six (6) years from the date of the cause of action, would apply.

8.  The respondent further submits that the applicant therefore ought to have filed the Advocate-Client Bill of Costs within six (6) years of the date of delivery of the abovementioned judgment.

9.  To support its arguments above, the respondent cites inter alia, the case of Abincha & Co Advocates v Trident Insurance Co Ltd [2013] eKLR in which the court held that:

“As already seen, any claim or action for an advocate’s costs is subject to the statute of limitation.  As already seen also, time begins to run from the date of completion of the work or lawful cessation of the retainer.  Time does not begin to run from the date of delivery of the bill!  Section 48(1) of the Advocates Act therefore cannot offer any defence against limitation… I therefore hold that any of the various bills of costs filed by the Advocate more than six (6) years after completion of the work which he was retained by the Client to do, or after the lawful termination of the retainer in respect of such work, is statute-barred by virtue of section 4(1) (a) of the Limitation of Actions Act.”

10. It is not in dispute that the parties herein enjoyed an advocate- client relationship at all material times which is recognized as being contractual in nature by law. It therefore follows that Section 4(1) (a) of the Act cited hereinabove would come into play in setting the limitation period.

11. In addition to the case of Abincha & Co Advocates v Trident

Insurance Co Ltd [2013] eKLR(supra), I also wish to borrow from the case of Akide & Co. Advocates v Kenindia Assurance Company Ltd [2018] eKLRalso cited in the respondent’s submissions, where the court rendered itself thus:

“On whether the Advocate’s Bill of Costs was time barred, Section 4 (1) (a) of the Limitation of Actions Act comes into play. For actions founded on contract like the advocates claim for professional services, there is a time limit of six years. This position is expounded in Halsbury’s Laws of England 4th Edition Vol 28 paragraph 879 (Page 452) which reads as follows:

“879. Solicitor’s Costs. 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 judgement 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.”

12. Upon my perusal of the record, it is not in dispute that the last action taken in respect to the suit giving rise to the present taxation proceedings was the delivery of judgment on 21st February, 2003.

13. It is therefore apparent that the Advocate-Client Bill of Costs being filed on 14th January, 2016 is time barred for being brought more than six (6) years following delivery of the judgment.

14. In view of the foregoing circumstances, the notice of preliminary objection dated 19th April, 2021 succeeds, consequently the Advocate-Client Bill of Costs dated 10th April, 2015 is hereby struck out for being time barred, with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

..........................

J. K.  SERGON

JUDGE

In the presence of:

........................................for the Applicant

.....................................for the Respondent