[2018] KEHC 8819 (KLR)
The court held that the issue of a refund of legal fees is not a constitutional matter but one of costs, which is properly addressed through the procedures set out in the Advocates Act and the Advocates Remuneration Order. The constitutional petition procedure is inappropriate for such disputes, as there are no...
Source-derived case information.
- Citation
- [2018] KEHC 8819 (KLR)
- Parties
- Applicant: Caseth Aiko Okiwi; Respondent: James Aggrey Mwamu t/a Mwamu & Company Advocates; Respondent: Chairman, Advocates Complaints Commission
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 13 of 2017
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Advocates Fees Dispute, Refund of Deposit, Procedure for Costs, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caseth Aiko Okiwi
Applicant
James Aggrey Mwamu t/a Mwamu & Company Advocates
Respondent
Chairman, Advocates Complaints Commission
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether a constitutional petition is the proper procedure for seeking a refund of legal fees deposited with an advocate.
- 2 Whether the petitioner is entitled to a refund of Kshs 40,000 for services allegedly not rendered.
Ratio Decidendi
The court held that the issue of a refund of legal fees is not a constitutional matter but one of costs, which is properly addressed through the procedures set out in the Advocates Act and the Advocates Remuneration Order. The constitutional petition procedure is inappropriate for such disputes, as there are no constitutional issues arising from the facts presented. The petition was therefore dismissed for want of jurisdiction on the subject matter.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CONSTITUTIONAL PETITION NO. 13 OF 2017
BETWEEN
CASETH AIKO OKIWI...............................................PETITIONER
AND
JAMES AGGREY MWAMU T/A
MWAMU & COMPANY ADVOCATES..............1ST RESPONDENT
CHAIRMAN, ADVOCATES COMPLAINTS
COMMISSION....................................................2ND RESPONDENT
JUDGMENT
I have looked at the petition and it seeks the following relief;
a) A declaration that the claimant is entitled to a refund of Kshs 40,000/= being the amount deposited with the 1st respondent’s law firm for services which were not rendered.
When the matter came up for hearing, Mr Opiyo, learned counsel for the petitioner told the court that in essence the petitioner contests the bill of costs filed by the respondent being Kisumu HC Misc. 34 of 2017 against the petitioner.
The issue of a refund is a matter which can be dealt with the Deputy Registrar in the taxation. A Constitutional Petition is not an appropriate procedure for agitating a dispute of costs as the procedure for contesting advocates claims on fees is well provided for in the Advocates Act (Chapter 16 of the Laws of Kenya) and the Advocates Remuneration Order.
As there are no constitutional issues arising in the petition, it is hereby dismissed with no order as to costs.
Dated read and delivered in this 23rd day of January 2018.
D.S. MAJANJA
JUDGE
Mr Opiyo instructed by Opiyo and Associates Advocates for the petitioner.
Mr Mwamu instructed by Mwamu and Company Advocates for the respondent.