[2007] KEHC 2293 (KLR)

[2007] KEHC 2293 (KLR)

The court held that the Advocates Act is a self-contained statute and the Civil Procedure Rules, including the provisions on abatement and substitution of parties, do not apply to advocate-client bills of costs. The preliminary objection based on abatement under Order XXIII Rule 4(3) therefore failed. Additionally, the failure to cite the enabling law for substitution was not fatal to the application, as Order 50 Rule 12 of the Civil Procedure Rules requires a showing of prejudice, which was not demonstrated by the respondent. The court found that the respondent's objections lacked merit and dismissed the preliminary objection with costs to the advocate.

Citation
[2007] KEHC 2293 (KLR)
Parties
Applicant: Chege Wainaina T/A Chege Wainaina & Company Advocates; Respondent: Joram Thuo Wairegi; Plaintiff: Joram Thuo Wairegi; Plaintiff: Samuel Mbugua Mutahi; Defendant: Kaylift Service Limited
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
29 June 2007
Case Number
? 211 of 2006
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
MM Kasango
Legal Topics
Advocate Client Costs, Substitution of Parties, Abatement of Suit, Jurisdiction of Court
Source Language
English
Civil Procedure Commercial and Corporate Advocate Client Costs Substitution of Parties Abatement of Suit Jurisdiction of Court

Case Brief

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Parties

Chege Wainaina T/A Chege Wainaina & Company Advocates

Applicant

Joram Thuo Wairegi

Respondent

Joram Thuo Wairegi

Plaintiff

Samuel Mbugua Mutahi

Plaintiff

Kaylift Service Limited

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the cause of action against the deceased client had abated under Order XXIII Rule 4 of the Civil Procedure Rules.
  2. 2 Whether the application for substitution of the deceased client was incompetent or fatal in law.
  3. 3 Whether the court had jurisdiction to grant the orders sought against the legal representative of the deceased client.

Ratio Decidendi

The court held that the Advocates Act is a self-contained statute and the Civil Procedure Rules, including the provisions on abatement and substitution of parties, do not apply to advocate-client bills of costs. The preliminary objection based on abatement under Order XXIII Rule 4(3) therefore failed. Additionally, the failure to cite the enabling law for substitution was not fatal to the application, as Order 50 Rule 12 of the Civil Procedure Rules requires a showing of prejudice, which was not demonstrated by the respondent. The court found that the respondent's objections lacked merit and dismissed the preliminary objection with costs to the advocate.

Court Disposition

preliminary objection dismissed

Orders

  • The respondent's preliminary objection is dismissed with costs to the advocate with the bill.