[2017] KEHC 6868 (KLR)
The court held that section 48(3) of the Advocates Act expressly allows an advocate to tax a bill of costs against a client without the necessity of filing a substantive suit for recovery of costs. The respondent's reliance on section 49 was misplaced, as section 48(3) provides a clear exception to the requirement...
Source-derived case information.
- Citation
- [2017] KEHC 6868 (KLR)
- Parties
- Applicant: Gideon Ongono Barongo T/A Barongo Ombasa Advocate; Respondent: Jiangxi Zhongmei Engineering Construction & Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 51 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the applicant
- Judges
- HK Chemitei
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Preliminary Objection, Advocates Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gideon Ongono Barongo T/A Barongo Ombasa Advocate
Applicant
Jiangxi Zhongmei Engineering Construction & Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an advocate must file a substantive suit by plaint under section 49 of the Advocates Act to recover costs from a client.
- 2 Whether an advocate can tax a bill of costs under section 48(3) of the Advocates Act without filing a suit.
Ratio Decidendi
The court held that section 48(3) of the Advocates Act expressly allows an advocate to tax a bill of costs against a client without the necessity of filing a substantive suit for recovery of costs. The respondent's reliance on section 49 was misplaced, as section 48(3) provides a clear exception to the requirement for a suit. Therefore, the preliminary objection raised by the respondent was without merit and was dismissed with costs to the applicant.
Court Disposition
preliminary objection dismissed with costs to the applicant
Orders
- The preliminary objection dated 11/9/2015 is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISC APPLICATION NO. 51 OF 2015
IN THE MATTER OF ADVOCATES ACT 16 LAWS OF KENYA
AND
IN THE MATTER OF ADVOATES REMUNARATION ORDER
AND
IN THE MATTER OF ADVOCATE -CLIENT BILL OF COSTS
BETWEEN
GIDEON ONGONO BARONGO
T/A BARONGO OMBASA ADVOCATE)..........................................................APPLICANT
VERSUS
JIANGIXI ZHOGNMEI ENGINEERING CONSTRUCTION & CO. LTD.......RESPONDENT
RULING
The applicant has filed the motion dated 5/8/2015 seeking to tax Advocate/client bill of costs which is already on record. The Applicant acted on behalf of the client in Civil suit No 357 of 2014 at the Industrial Court. That fact seemed not to be contested by the respondent.
The only argument by the respondent is the objection by way of preliminary point of law namely that
“The application is an affront to the provisions of section 49 of the Advocates Act Cap 16 of the Laws of Kenya as a claim under the said provision has to be by way of a substantial suit commenced by a plaint”
The same has been opposed by the applicant citing Section 48(3) of the Advocates Act which states
“Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs has been filed.”
In the present application, there is no dispute that the applicant acted for the Respondent in a set of matters . Despite this there was disagreement on his fees hence withdrawal of the instructions.
Contrary therefore to the perspective of the respondent the afore quoted Section does not envisaged a situation where the advocate has to file suit. It gives greenlight to the Advocate to proceed to demand and tax his bill without following the provisions of Section 49.
For the foregoing reasons the preliminary objection dated 11/9/2015 is dismissed with costs to the Applicant.
Delivered on 15th day of March 2017.
__________________
H.K. CHEMITEI
JUDGE
In the presence of;
Teti for holding brief for Barongo for Applicant
No appearance for for the Respondent
Kirong – Court Assistant