[2013] KEHC 1148 (KLR)
The court found that the dispute between the petitioner, an advocate, and his client was civil in nature, specifically concerning legal fees and the balance due after a judgment. The appropriate mechanism for resolving such disputes is through the taxation of the advocate's bill of costs and not through criminal...
Source-derived case information.
- Citation
- [2013] KEHC 1148 (KLR)
- Parties
- Applicant: Anziya Akula Laban; Respondent: The Hon. Attorney General; Respondent: The OCS Kakamega; Respondent: Inspector Joseph Macharia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 92 of 2012
- Procedural Posture
- Constitutional Petition / Ruling
- Outcome
- petition allowed
- Legal Topics
- Advocate Client Disputes, Prohibition Orders, Arrest and Prosecution, Bill of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anziya Akula Laban
Applicant
The Hon. Attorney General
Respondent
The OCS Kakamega
Respondent
Inspector Joseph Macharia
Respondent
Procedural Posture
Constitutional Petition / Ruling
Legal Issues
- 1 Whether the petitioner is entitled to an order of prohibition restraining the respondents from arresting or prosecuting him in relation to a civil dispute with a client.
- 2 Whether a civil dispute between an advocate and client should be resolved through criminal proceedings or by taxation of the advocate's bill of costs.
Ratio Decidendi
The court found that the dispute between the petitioner, an advocate, and his client was civil in nature, specifically concerning legal fees and the balance due after a judgment. The appropriate mechanism for resolving such disputes is through the taxation of the advocate's bill of costs and not through criminal prosecution. The court held that arresting and charging the advocate would not resolve the underlying civil dispute and would amount to an abuse of the criminal process. The court therefore granted the order of prohibition sought by the petitioner, restraining the respondents from arresting or prosecuting him in relation to the matter, and directed that each party bear their own...
Court Disposition
petition allowed
Orders
- An order of prohibition is issued restraining the respondents from arresting or prosecuting the petitioner in relation to the dispute with Alice Njeri Mbugua.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CONSTITUTIONAL PETITION NO. 92 OF 2012
ANZIYA AKULA LABAN ……………………………………….. APPLICANT
V E R S U S
THE HON. ATTORNEY GENERAL ……………....……… 1ST RESPONDENT
THE OCS KAKAMEGA …….……………………………. 2ND RESPONDENT
INSPECTOR JOSEPH MACHARIA …...……………….. 3RD RESPONDENT
R U L I N G
The petitioner is seeking an order of prohibition against the respondent from arresting or prosecuting the petitioner. The petition is supported by an affidavit sworn on the 2. 7.2012. Counsel for the petitioner filed written submissions while the State left the matter to the court to decide. The essence of the petition is that the petitioner is an Advocate and represented one ALICE NJERI MBUGUA in Kakamega CMCC No. 81 of 2005. The plaintiff in that suit was awarded damages amounting to KShs.350,000/= less 10% contribution. The petitioner paid the plaintiff KShs.186,000/= and the plaintiff lodged a complaint with the Advocates Complaints Commission that was registered as No. 35 of 2011.
The petitioner contends that the Complaints Commission has not finalized the matter and the said Alice Njeri Mbugua is using a relative who is a police officer to have the petitioner arrested and charged in court. The dispute arises from a civil matter. It is clear that there is a dispute between an Advocate and his client and the only way to sort it out is to have the Advocate file his Bill of costs and have it taxed. Thereafter, the balance, if any, should be paid to the claimant. Arresting and charging the advocate in court will not settle the dispute. The claimant should either await the decision of the Complaints Commission or call upon the petitioner to tax his bill and know how much is the remaining balance. I do find that the application is merited and the same is allowed. Each party to meet his/her own costs.
Dated at Kakamega this 14th day of November 2013
SAID CHITEMBWE
J U D G E