[2022] KEHC 1487 (KLR)
The court found that, although it was not fully convinced by the denial of instructions by the client's advocate, in the interest of justice and given the confusion regarding representation, the taxation should be set aside. The court emphasized that the client should not be penalized for the uncertainty over...
Source-derived case information.
- Citation
- [2022] KEHC 1487 (KLR)
- Parties
- Applicant: Aggrey Lucas Kidiavai P/A Kidiavai Advocates & Company Advocates; Respondent: Kishor Veijipatani
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 20 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Taxation of Advocate Client Bill of Costs
- Outcome
- application allowed on terms
- Judges
- LK Kimaru
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Setting Aside Orders, Representation in Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Lucas Kidiavai P/A Kidiavai Advocates & Company Advocates
Applicant
Kishor Veijipatani
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Taxation of Advocate Client Bill of Costs
Legal Issues
- 1 Whether the taxation of the Advocate-Client Bill of Costs should be set aside due to alleged absence of the client's advocate during taxation.
- 2 Whether the appearance of an advocate holding brief without instructions invalidates the taxation proceedings.
Ratio Decidendi
The court found that, although it was not fully convinced by the denial of instructions by the client's advocate, in the interest of justice and given the confusion regarding representation, the taxation should be set aside. The court emphasized that the client should not be penalized for the uncertainty over whether an advocate was properly instructed to hold brief. The court therefore set aside the taxed bill and ordered a re-taxation before the Deputy Registrar, but imposed costs of Kshs 10,000 on the client for the application, to be paid to the advocate within 30 days.
Court Disposition
application allowed on terms
Orders
- The Advocate-Client Bill of costs taxed on 7th September 2021 is set aside.
- The Bill of costs shall be re-taxed before the Deputy Registrar.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
MISC. CIVIL CASE NO. 20 OF 2020
AGGREY LUCAS KIDIAVAI P/A KIDIAVAI
ADVOCATES & COMPANY ADVOCATES...................................APPLICANT/RESPONDENT
VERSUS
KISHOR VEIJIPATANI......................................................................RESPONDENT/APPLICANT
RULING
On 2nd September 2020, the Advocate filed a notice of motion before this court seeking to have his Advocate-Client Bill of Cost taxed by the Deputy Registrar of this court. The client was duly served with the Notice of Motion. He appointed the firm of Wambeyi Makomere & Company Advocates to act on his behalf. In the several proceedings before the Deputy Registrar, both advocates appeared before court. On 13th July 2021, the parties agreed that the Advocate-Client Bill of costs would be disposed off by the parties filing written submissions. On that day, an advocate held brief for the advocate of the client. It was agreed that the written submissions would be presented to court by 10th August 2021. On that day, a Mr. Ngeywa appears on record as representing Mr. Wambeyi for the client. Ruling for the taxation was reserved for 21st August 2021 but was delivered on 7th September 2021.
The Advocates-Client Bill of cost was taxed at Kshs 163,005/=. The advocate applied to have the said Bill of costs executed. It was then that the client’s advocate filed an application seeking to have the taxation set aside, inter alia, on the grounds that the taxation had taken place in his absence. The client’s Advocate disowned having instructed the Mr Ngeywa who is said to have appeared on his behalf on 10th August 2021 when the Bill of costs was taxed. In the circumstances therefore, the client prayed for the Bill of costs to be re-taxed. The application is opposed, the Advocate swore a replying affidavit in opposition to the application. The Advocate depone that he had been in communication with the client’s Advocate during the relevant times. The client’s Advocate was aware of all the dates that the court had fixed for court events in the matter. He asserted that there was no reason put forward by the client why the taxation should be set aside since the client’s Advocate was present during the said taxation through an Advocate who held his brief.
During the hearing of the application, this court heard oral submissions made by Mr. Wambeyi for the client and Ms Efedha for the Advocate. This court has carefully considered the said submissions. The issue for determination by this court is whether the client established its case for this court to set aside the taxation in question. Mr Wambeyi submitted that he had not instructed an advocate to hold his brief on the particular day the taxation is said to have been done. On the other hand, Ms Efedha urged the court to find that indeed Mr Wambeyi had instructed the Advocate to hold his brief on the particular day.
This court was intrigued by the denial by Mr Wambeyi that he had instructed an Advocate to hold his brief on the particular day. This was because no Advocate can appear before a court claiming that he is holding brief on behalf of another Advocate if he did not have instructions to do so. This court requested Mr. Wambeyi to confirm from Mr. Ngaywa whether he had appeared on his behalf in court on the particular day. Mr. Wambeyi swore a further affidavit indicating that there was no Advocate by the name Mr. Ngaywa who practices as an Advocate.
The question that then arose is whether the person who appeared in court as holding brief for Mr. Wambeyi was Mr. Ngeywa. Mr Ngeywa denied that he appeared in court on the particular day. While this court was not persuaded that the court record could have misrepresented the parties who appeared before the court, and further while this court was not convinced that Mr. Wambeyi had not instructed an Advocate to hold his brief on that particular day, in the interest of justice, and since the client is not to blame for this sorry state of affairs, it will allow the application by Mr. Wambeyi but on terms.
The Advocate-Client Bill of costs taxed on 7th September 2021 by the Deputy Registrar of this court is hereby set aside. The said Bill of cost shall be re-taxed before the Deputy Registrar. However, the client shall pay to the Advocate the cost of the application which this court assesses at Kshs 10,000/=. The said amount shall be paid to the Advocate within 30 days of the date of this ruling. It is so ordered.
DATED AT KITALE ON THIS 18TH DAY OF MARCH, 2022
L. KIMARU
JUDGE