Mereka & Co. Advocates v Invesco Assurance Co. Ltd [2018] KEHC 6163 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC. APPL.  NO. 317  OF 2015

MEREKA & CO. ADVOCATES...............APPLICANT/ADVOCATE

-V E R S U S –

INVESCO ASSURANCE CO. LTD.............CLIENT/RESPONDENT

RULING

1) Mereka & Co. Advocates, the applicant/advocate herein, filed theadvocate-client Bill of costs dated 15. 7.2015 against Invesco Assurance Co. Ltd, the client respondent herein.  The Bill of costs was heard and dismissed by Hon. F. Rashid, learned Taxing Officer, on the basis that the same was time-barred.  The learned Taxing Officer stated that the Bill of Costs was filed 8 years after the cause of action arose.

2) Being aggrieved by the dismissal order, the advocate/applicantpreferred this reference.  The reference was served but the same elicited no response.  When the reference came up for hearing, the client/respondent failed to turn up therefore the same proceeded for hearing exparte.  Mr. Mathenge, learned advocate for the advocate/ applicant argued that the Taxing Officer erred when she held that the Bill of Costs was time  barred yet there were evidence to show that the application was not time-barred.

3) I have on my part considered the material placed before thiscourt.  The correspondences annexed to the Bill of Costs indicate that the client/respondent has been in constant communication with the advocate from the date the advocate ceased acting for the client/respondent. It would appear from the correspondences that the client kept on making promises to the advocate to settle his fees but failed to fulfil those promises.  The promises induced the advocate/applicant, to delay from taking action to recover his fees until the time to file the bill lapsed.  I agree with the advocate/applicant’s submissions that the client respondent should not be allowed to take advantage of limitation of time because the client kept on  making false promises until time lapsed to file a Bill of Costs.  This court holds the view that time begins to run from the date the client/respondent acknowledged being indebted to the advocate and agreeing not to contest the claim on the basis of limitation of time.  Had the learned Taxing Officer taken time to go through the correspondences exchanged between the advocate and the client, she would have proceeded to reject the argument that the Bill of costs was time barred.

4)   In the end, I find the chamber summons dated 14. 12. 2017 to bemeritorious.  It is allowed as follows:

a) The Taxing Officer’s decision to dismiss the Bill of Costs delivered on 2/11/2017 is set aside.

b) The aforesaid Bill of costs is reinstated and should be retaxed afresh by another Taxing Officer other than Hon. F. Rashid.

c) Costs of the reference to await the outcome of the re-taxation.

Dated, Signed and Delivered in open court this 25th day of May, 2018.

J. K. SERGON

JUDGE

In the presence of:

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

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