[2023] KEELC 15751 (KLR)
The court found that the advocate, having filed the reference on 30 October 2018 and taken no steps to prosecute it for over three years, had demonstrated a lack of interest in pursuing the matter. The advocate did not oppose the application for dismissal nor appear at the hearing. The court concluded that there was...
Source-derived case information.
- Citation
- [2023] KEELC 15751 (KLR)
- Parties
- Applicant: Mckay & Company Advocates; Respondent: Oloirien Group Ranch
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 19 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss Reference for Want of Prosecution
- Outcome
- reference dismissed for want of prosecution
- Judges
- M Sila
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mckay & Company Advocates
Applicant
Oloirien Group Ranch
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss Reference for Want of Prosecution
Legal Issues
- 1 Whether the reference filed by the advocate should be dismissed for want of prosecution.
- 2 Whether the advocate demonstrated any interest in prosecuting the reference.
Ratio Decidendi
The court found that the advocate, having filed the reference on 30 October 2018 and taken no steps to prosecute it for over three years, had demonstrated a lack of interest in pursuing the matter. The advocate did not oppose the application for dismissal nor appear at the hearing. The court concluded that there was no justification to keep the reference alive and that the client was entitled to have the matter dismissed for want of prosecution. Accordingly, the application was allowed and the reference dismissed with costs to the client.
Court Disposition
reference dismissed for want of prosecution
Orders
- The reference by the advocate is dismissed for want of prosecution.
- Costs awarded to the client.
Full Case Text
Judgment text and source record
20 paragraphs
Mckay & Company Advocates v Oloirien Group Ranch (Miscellaneous Application 19 of 2018) [2023] KEELC 15751 (KLR) (23 February 2023) (Ruling)
Neutral citation: [2023] KEELC 15751 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Miscellaneous Application 19 of 2018
M Sila, J
February 23, 2023
Between
Mckay & Company Advocates
Advocate
and
Oloirien Group Ranch
Client
Ruling
1. The application before me is that dated 9 May 2022 filed on behalf of the respondent/client in this Miscellaneous Suit. It seeks orders that this reference, being a reference by an advocate over taxation of Advocate/Client fees, be dismissed for want of prosecution. Nothing was filed to oppose the motion and neither did the applicant in the reference appear in court during its inter partes hearing.
2. I have gone through the record. On 8 March 2018, McKay & Company Advocates filed an Advocate/Client bill of costs for taxation. The Advocate had represented the client in the suit Kisii ELC No 47 of 2015 where the client had been sued. The Advocate presented a bill of Kshs 130,903,475/= with the sum of Kshs 130,821,900/= being instruction fees and VAT. The taxing officer thought that a sum of Kshs 100,000/= as instruction fees was adequate and increased it by a half, thus Kshs 150,000/=. She added VAT and other disbursements and eventually taxed the bill at Kshs 205,115/=. The ruling was delivered on 16 October 2018.
3. Aggrieved, the Advocate filed a reference to this Court pursuant to Paragraph 11 (2) of the Advocates’ Remuneration Order. The reference was filed on 30 October 2018. The reference was opposed through a replying affidavit filed on 28 November 2018. The Advocate has never moved the court since filing of the reference and has never appeared during the times that the matter has been mentioned. It is this that prompted the Client to file the subject application seeking its dismissal for want of prosecution. As I have mentioned, despite being served, the Advocate failed to file anything to oppose the application and did not appear in court when the application was heard.
4. It will be observed that since filing the reference on 30 October 2018, to May 2022, when this application was filed, more than three years had lapsed. It is clear that the Advocate has lost interest in pursuing the reference. I have no reason not to allow this application and I allow it. The reference herein is dismissed with costs to the Client.
5. Orders accordingly.
DATED AND DELIVERED THIS 23TH DAY OF FEBRUARY, 2023JUSTICE MUNYAO SILAJUDGE,ENVIRONMENT AND LAND COURT AT KISII