[2005] KEHC 2031 (KLR)
The court held that the respondent's suit was incompetent as he failed to comply with the mandatory requirements of Section 48(1) of the Advocates Act, which prohibits the institution of a suit for recovery of advocate's fees unless a bill of costs has been delivered to the client and one month has elapsed....
Source-derived case information.
- Citation
- [2005] KEHC 2031 (KLR)
- Parties
- Appellant: Dr. Kanyenje Gakombe; Respondent: Muriithi Wanjau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 520 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; lower court judgment set aside; respondent's suit dismissed with costs to appellant
- Legal Topics
- Advocate Fee Recovery, Pleadings Requirements, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Kanyenje Gakombe
Appellant
Muriithi Wanjau
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether a suit for recovery of advocate's fees can be maintained without issuance and delivery of a bill of costs as required by Section 48(1) of the Advocates Act.
- 2 Whether judgment can be entered for an advocate in the absence of taxation and certification of costs when the defendant disputes the fees, as per Section 49 of the Advocates Act.
- 3 Whether the lower court erred in entering judgment for the respondent without compliance with statutory requirements.
Ratio Decidendi
The court held that the respondent's suit was incompetent as he failed to comply with the mandatory requirements of Section 48(1) of the Advocates Act, which prohibits the institution of a suit for recovery of advocate's fees unless a bill of costs has been delivered to the client and one month has elapsed. Furthermore, since the appellant disputed the fees, Section 49 required taxation and certification of the costs before judgment could be entered. The respondent neither issued nor pleaded a bill of costs, nor followed the prescribed procedure for taxation. The lower court's judgment was therefore erroneous in law, and the appeal was allowed, setting aside the lower court's decision and...
Court Disposition
appeal allowed; lower court judgment set aside; respondent's suit dismissed with costs to appellant
Orders
- The appeal is allowed with costs to the appellant.
- The judgment and decree of the lower court are set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL 520 OF 1999
DR. KANYENJE GAKOMBE ………………….………… APPELLANT
VERSUS
MURIITHI WANJAU ………………………...………… RESPONDENT
(An Appeal from the Judgment of Hon. J. R. Karanja, SPM in
Nairobi Milimani Commercial Courts Civil Suit No. 8373 of 1995
delivered on 29th October, 1999).
J U D G M E N T
By a Plaint dated the 3rd April, 1995, and filed in the lower court on 8th August, 1995, the Respondent (Plaintiff in the lower court) claimed the sum of Kshs.58,000/= from the Appellant in respect of legal services allegedly rendered to the Appellant. The Appellant denied that such services were rendered, but called no evidence to support his denial. However, it is not in dispute that the Respondent neither issued a bill for costs, nor had his fess taxed by the Registrar. He simply filed a suit for the recovery of the sum, upon the Appellant’s refusal to pay.
The lower court, having heard evidence from the Respondent, was satisfied, on a balance of probability, that legal services had indeed been rendered to the Appellant, and awarded the sum claimed to the Respondent. Aggrieved by that decision, the Appellant has appealed to this court, outlining the following four grounds of appeal:
“1. The learned Magistrate erred in law in finding that the Respondent wasentitled to Kshs.58,000/= arising from a fee-note raised while the saidmaterial fact was not pleaded in the plaint.
2. The learned Magistrate erred in law in finding that the Respondent was entitled to Kshs.58,000/= as professional fees arising from a fee-noteraised whereas the said fee-note was not produced as evidence.
3. The learned Magistrate erred in law in finding that the Respondent had proved his case whereas the Respondent’s case did not plead materialfacts nor adduce evidence to found a cause of action under Section 48(1), Advocates Act.
4. The learned Magistrate erred in law in entering judgment for the Respondent whereas the Respondent had not exhausted his burden ofproof.”
Section 48 (1) of the Advocates Act (Cap 16) states:
“Subject to this Act, no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs,which may be in summarized form, signed by the advocate or a partner in hisfirm, has been delivered or sent by registered post to the client, unless there isreasonable cause, to be verified by affidavit filed with the plaint, for believingthat the party chargeable therewith is about to quit Kenya or abscond from thelocal limits of the Court’s jurisdiction, in which event action may becommenced before expiry of the period of one month.”
As I indicated before, no such bill for costs was issued, or pleaded by the Respondent. Accordingly, on that ground alone, his suit in the lower court should have been struck out, as being incompetent.
In any event, Section 49 of the Advocates Act prescribes the course that should have governed the suit in the lower court where the Defendant had disputed the payment of the legal fees as claimed. That Section stipulates as follows:
“49. Where, in the absence of an agreement for remuneration made by virtue of section 45, a suit has been brought by an advocate for the recovery of anycosts and a defence is filed disputing the reasonableness or quantum thereof-
(a) no judgment shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer;
(b) unless the bill of costs on which the suit is based is fully itemized, the plaintiff shall file a fully itemized bill of the costs withinfourteen days from the date of service of the defence, or suchfurther period as may be allowed by the court, and shall serve acopy thereof on the defendant, and, if the total amount of suchbill exceeds the amount sued for, the prayer of the plaintiff shall,subject to the court’s pecuniary jurisdiction, be deemed to beincreased accordingly and all consequential amendments to thepleadings may be made.”
No such procedure, as outlined in Section 49 (a) above, was followed. Accordingly, this court concurs fully with the submissions made by Mr Mari, Counsel for the Appellant, and hereby allows this Appeal with costs. The Judgment and the decree of the lower court is set aside, and the Respondent’s suit in the lower court is dismissed with costs to the Appellant.
Dated and delivered at Nairobi this 20th day of July, 2005.
ALNASHIR VISRAM
JUDGE