[2017] KEHC 3757 (KLR)
The court found that the client/respondent failed to provide any evidence to support the allegations that the claim was time barred or that there was no retainer. On the contrary, the client's own affidavit admitted the existence of a retainer. Furthermore, the certificate of costs issued by the Deputy Registrar had...
Source-derived case information.
- Citation
- [2017] KEHC 3757 (KLR)
- Parties
- Applicant: K'Opot & Company Advocates; Respondent: Walter Edwin Ominde
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 179 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application allowed; judgment entered for applicant
- Judges
- EM Muchoki
- Legal Topics
- Taxation of Costs, Retainer Agreement, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K'Opot & Company Advocates
Applicant
Walter Edwin Ominde
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the advocate is entitled to judgment for taxed costs against the client.
- 2 Whether the claim for costs is time barred under the Limitation of Actions Act.
- 3 Whether there was a valid retainer between the advocate and the client.
Ratio Decidendi
The court found that the client/respondent failed to provide any evidence to support the allegations that the claim was time barred or that there was no retainer. On the contrary, the client's own affidavit admitted the existence of a retainer. Furthermore, the certificate of costs issued by the Deputy Registrar had not been set aside and is therefore conclusive as to the amount due. The court held that the advocate/applicant is entitled to judgment for the taxed costs and the costs of the application.
Court Disposition
application allowed; judgment entered for applicant
Orders
- Judgment is entered for the Advocate/Applicant against the Client/Respondent for Kshs.103,535.80 and costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL SUIT NO. 179 OF 2013
K'OPOT & COMPANY ADVOCATES …................................ADVOCATE/APPLICANT
VERSUS
WALTER EDWIN OMINDE ….......................................................CLIENT/RESPONDENT
RULING
Before me is the Notice of Motion dated 29th March 2016 in which the Advocate/Applicant seeks judgment and decree for taxed costs in the sum of Kshs.103,535/80 and the costs of the application. He has to that application annexed a certificate of costs duly signed by the Deputy Registrar on 16th March, 2016.
The Client/Respondent has however opposed the application on the grounds that there was no retainer, that the Advocate has filed many frivolous bills against him and that this claim is time barred as the mother suit was completed over ten years ago.
This Court heard the Advocates for the parties on 12th April 2017. I have considered the submissions and the grounds for and against the application carefully. The application has merit. The Client has not attached anything to demonstrate that the mother suit was completed over ten years ago and that therefore the Advocate's claim is statute barred. Neither has he revealed the many other frivolous bills that the Advocate has filed against him. It is not enough to allege as he who alleges must prove. To the contrary it is my finding that by his own “affidavit” sworn on 24th January 2014 in support of an earlier application in this very suit the Client admitted the retainer by stating:-
“..........Item 1 Instructions fees is charged once for all the advocates who come on record in a matter in the instant case, the advocate only filed the suit and nothing more. The suit was seeking simple injunctive prayers.
There is no decree annexed and no figure was being pursued. The item will attract 28,000/= as a just amount the advocate will be entitled to on instructions fees.................................
6. All the disbursements were paid for by the Client/Respondent and the same cannot be claimed by the advocate. Therefore items 1 & 2 of the disbursements should be disallowed …..................”
Secondly there is a Certificate of Costs duly signed which has not been set aside by this court. The application is therefore allowed and judgment entered for the Advocate/Applicant against the Client/Respondent for Kshs.103,535/80 and costs of the application. It is so ordered.
E. N. MAINA
JUDGE
Signed, dated and delivered this 3rd day of August 2017
In the presence of:-
Mr. Mirembe for Nyamweya for Respondent
N/A for K'Opot for Applicant
Evon – Court Assistant