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ELRCDismissedReference re Advocate-Client Bill of Costs dated 15.02.2021 (Kisumu Cause No 326 of 2013, Eric Onyango Ombara v Devyan Food Industries Kenya Ltd)

Khalwale & Co Advocates v Devyan Food Industries Kenya Ltd (Formerly Sameer Agriculture & Livestock Co Ltd) (Miscellaneous Application E014 of 2021) [2024] KEELRC 1092 (KLR)

High Court of Kenya (Employment and Labour Relations Court)
15 May 2024
798 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The applicant advocate, Khalwale & Co Advocates, filed a Reference seeking to set aside a ruling of the Taxing Officer, Hon F.M. Rashid, delivered on 19 March 2024, which had dismissed the advocate/client Bill of Costs dated 15 February 2021 as statute-barred. The advocate argued that he was on a continuous retainer terminated on 30 September 2018, so the Bill, filed within two years of termination, was in time. The respondent countered that the last service was rendered on 29 September 2014 in Kisumu Cause No 326 of 2013 (Eric Onyango Ombara v Devyan Food Industries Kenya Ltd), making the Bill, lodged in February 2021, well outside the six-year period prescribed by section 4(1) of the Limitation of Actions Act; no invoice or fee note had ever been sent. The Court, Radido Stephen J, applied Akide & Company Advocates v Kenindia Assurance and Mwangi Kengara & Co Advocates v Invesco Assurance, holding that a retainer merely obliges an advocate to be available when called upon, and that each instruction forms a distinct contract for which a fee note should be rendered upon completion. Time therefore began to run on 29 September 2014 when the services were completed, and the claim for fees was out of time. The Court found no merit in the Reference and dismissed it with costs on 15 May 2024, leaving the Taxing Officer's ruling intact.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Taxing Master erred in law in holding that the Advocate-Client Bill of Costs dated 15 February 2021 was time-barred
  2. 2.Whether time for purposes of limitation began to run on termination of the retainer or on completion of the last service rendered
  3. 3.Whether the Reference should be allowed and the Bill referred for fresh taxation

Key legal issues

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01

When time begins to run for an advocate's claim for fees where there was a continuous retainer

Holding

Time runs from the date the particular service was completed, not from termination of the retainer

Reasoning

The Court held that a retainer merely means the advocate is available to provide services when called upon. Each instruction is a distinct contract, and upon completion of each service the advocate should render a fee note. Since the services in the underlying cause were completed on 29 September 2014 and no invoice or fee note was issued, limitation began to run then, rendering the February 2021 Bill time-barred.

p. 3
02

Whether the Taxing Officer erred in dismissing the Bill as statute-barred

Holding

No error; the dismissal was correct

Reasoning

Applying Akide & Company Advocates v Kenindia Assurance and Mwangi Kengara & Co Advocates v Invesco Assurance, the Court agreed that in the absence of a moratorium suspending claims, time runs from the last date services were rendered. The Bill filed on 15 February 2021, almost seven years after the cause terminated, fell outside the six-year period in section 4(1) of the Limitation of Actions Act.

p. 3

Legal principles established

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  • A retainer does not suspend limitation for fees; each instruction forms a distinct contract and time runs from completion of the particular service
  • The limitation period in section 4(1) of the Limitation of Actions Act applies to actions for legal fees

Court orders

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  1. 1.The Reference is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Reference against the Taxing Officer's ruling (Advocate/client Bill of Costs taxation)

Relief refused

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Vacation and setting aside of the Taxing Officer's ruling of 19 March 2024

The Court found no merit in the Reference; the Bill was filed outside the limitation period

p. 3

Referral of the Bill of Costs for fresh taxation or re-taxation

Limitation had run from completion of the services, not termination of the retainer

p. 3

Costs

The Reference is dismissed with costs (costs to the Respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Once any particular legal service is completed, the advocate would be expected to raise an invoice or fee note despite the existence of the retainer, for each instruction forms a distinct contract.
p. 3Retainer and limitation for advocate's fees
The task the Respondent gave the advocate instructions to carry out was completed on 29 September 2014, and that is when the time for purposes of limitation started to run.
p. 3Commencement of limitation period
The Court finds no merit in the Reference and it is dismissed with costs.
p. 3Final orders / disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Khalwale & Co Advocates v Devyan Food Industries Kenya Ltd (Formerly Sameer Agriculture & Livestock Co Ltd) (Miscellaneous Application E014 of 2021) [2024] KEELRC 1092 (KLR)", Case Analysis (2024). Reference re Advocate-Client Bill of Costs dated 15.02.2021 (Kisumu Cause No 326 of 2013, Eric Onyango Ombara v Devyan Food Industries Kenya Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1092/eng@2024-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.