[2010] KEHC 2955 (KLR)
The court found that the application for stay of proceedings was not justified. The reference before the court concerned the advocate's fees, and the advocate was entitled to pursue the reference as provided by law. The pending application to amend or rectify the decree in HCCC No. 1821 of 1999 involved other...
Source-derived case information.
- Citation
- [2010] KEHC 2955 (KLR)
- Parties
- Applicant: Issa & Company Advocates; Respondent: Ganijee Glass Mart Limited; Respondent: Pan African Glass Industries Limited; Respondent: Rashida Rajabali Ganijee; Respondent: Khadija Najmudin Ganijee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 626 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Proceedings Pending Rectification of Decree
- Outcome
- application dismissed with costs to the advocate
- Judges
- FI Koome
- Legal Topics
- Stay of Proceedings, Taxation of Costs, Reference Procedure, Advocate Client Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issa & Company Advocates
Applicant
Ganijee Glass Mart Limited
Respondent
Pan African Glass Industries Limited
Respondent
Rashida Rajabali Ganijee
Respondent
Khadija Najmudin Ganijee
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Proceedings Pending Rectification of Decree
Legal Issues
- 1 Whether the court should grant a stay of proceedings in a reference pending the determination of an application to rectify a decree in a different suit.
- 2 Whether the amendment or rectification of the decree in HCCC No. 1821 of 1999 has a bearing on the advocate-client reference before the court.
- 3 Whether the advocate is entitled to proceed with the reference despite the pending application to amend the decree.
Ratio Decidendi
The court found that the application for stay of proceedings was not justified. The reference before the court concerned the advocate's fees, and the advocate was entitled to pursue the reference as provided by law. The pending application to amend or rectify the decree in HCCC No. 1821 of 1999 involved other parties and did not directly affect the advocate-client dispute or the reference on taxation. The advocate was not a party to the amendment proceedings, and there was no legal or procedural basis to stay the reference. The court held that granting a stay would unjustifiably delay the advocate's right to have the reference determined and would not serve the interests of justice....
Court Disposition
application dismissed with costs to the advocate
Orders
- The Notice of Motion dated 12th November 2009 is disallowed.
- Costs awarded to the Advocate.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Miscellaneous Civil Application 626 of 2008
ISSA & COMPANY ADVOCATES ……………………………..APPLICANT/ADVOCATE
VERSUS
GANIJEE GLASS MART LIMITED …………………………..1ST RESPONDENT/CLIENT
PAN A FRICAN GLASS INDUSTRIES LIMITED ………2ND RESPONDENT/CLIENT
RASHIDA RAJABALI GANIJEE &
KHADIJA NAJMUDIN GANIJEE ……………………………….3RD RESPONDENT/CLIENT
(EXECUTORS OF THE WILL OF NAJMUDIN JIWAJI GANIJEE)
RULING
1. The Notice of Motion dated 12th November 2009 was taken out by the Ganijee Glass Mart Limited and Others (herein after referred to as “the Client”) seeking for orders that there be a stay of further proceedings herein and in particular the reference filed by Issa & Company Advocates (herein after referred to as “the Advocate”) pending the determination of the application regarding the amendment or rectification of the decree.
2. This application is premised on the grounds that following a taxation of the bill of costs the Clients have made an application before this court to rectify the decree dated16th May 2003 which will affect the taxation and the reference. These facts in support of this application are explained further by the matters deposed to in the supporting affidavit sworn by Ijaz Hussein Ganijee sworn on 12th November 2009. According to the Client the Advocate was instructed to defend the execution proceedings in HCCC NO. 1821 OF 1999.
3. Judgment had been entered and the instructions were limited to defending a decree. Thus the instruction fees were based on the value of the decree. However the Client maintains that the instructions given to the Advocate were limited to defending the enforcement of the decree and they have applied to rectify the decree and that is why they are applying for the stay of proceedings until the decree is rectified. The outcome of the application to rectify the decree in HCCC NO.1821 OF 1999will have a bearing on the bill of costs. That is why the Client is seeking a stay of proceedings. Counsel relied on the case of Ujaga Singh v Runda Coffee Estates, Ltd EALR 1966 page 263. It was further argued that the court has discretion in the interest of justice to order stay of proceedings.
3. This application was opposed. Counsel for the Advocate relied on the grounds of opposition on points of law. It was submitted that there are no special circumstances to warrant an order of stay of a reference. The application by the client to amend a decree has nothing to do with the miscellaneous cause between and Advocate and the Client. Instructions were issued to the advocate by the client. It is for the court to decide the reference and establish whether the instructions were limited to the enforcement of the decree. The advocate is not a party to the amendment of the decree. It would therefore not be in the interest of justice to stay the reference. The advocate has already rendered the services. The client has also benefited from the services but is now trying to block the advocates from their costs. All the decisions cited by the client relate to a stay of proceedings pending an appeal and none relates to a stay of proceedings of a reference.
4. I have considered the rival submissions as summarized above. This application strangely invokes the “inherent powers of this court” under Order 50 rule 1 of the Civil Procedure Rules. This application is seeking for a stay of proceedings namely a reference which the advocates filed in regard to a decision of taxation made on24th February 2009. It is trite that judicial discretion gives the court flexibility to provide definitions according to the specifics of a particular case. In this case there is no set procedure or even decided cases on how the court can stay proceedings filed by way of a reference.
5. However the court can stay proceedings pending appeal and the issue to address is whether the order of stay of proceedings will serve the interest of justice. In deciding whether to order a stay the court should take into account whether the stay order will prejudice the respondent by causing a delay. The merits of the intended action should also be taken into account. In this case the Client contends that they intend to amend the decree in HCCC NO. 1821 OF 1999, which matter involved other parties altogether and the advocate was not a party.
6. The reference involves a determination of the Advocates fees. The Advocates Bill of Costs was taxed and the Advocate was dissatisfied with the decision of the taxing master. The advocate is entitled to file a reference as provided for by the law. I see no justifiable reasons why the advocate should be held back by the Client who intends to challenge or seek to amend the decree in another suit. Accordingly, the notice of motion dated12th November 2009 is disallowed with costs to the Advocate.
RULING READ AND SIGNED ON26TH MARCH 2010ATNAIROBI.
M.K. KOOME
JUDGE