[2012] KEHC 2666 (KLR)
The court found that the applicant failed to prove he was formally instructed as an advocate to act on behalf of the respondent in the boundary dispute. The evidence showed that the applicant attended meetings as a friend, not in a professional capacity, and that all travel and accommodation expenses were paid by...
Source-derived case information.
- Citation
- [2012] KEHC 2666 (KLR)
- Parties
- Applicant: Mugambi & Co. Advocates; Respondent: Erastus Muthuri Karagania
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 95 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Taxation of Advocate Client Bill of Costs
- Outcome
- bill of costs dismissed with costs to the respondent
- Judges
- REA Ougo
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Remuneration Order, Legal Fees Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugambi & Co. Advocates
Applicant
Erastus Muthuri Karagania
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Taxation of Advocate Client Bill of Costs
Legal Issues
- 1 Whether the applicant is entitled to the fees claimed in the advocate-client bill of costs.
- 2 Whether the applicant was properly instructed as an advocate or acted merely as a friend.
- 3 Whether the applicant has adduced sufficient evidence to support the claimed instruction fees.
Ratio Decidendi
The court found that the applicant failed to prove he was formally instructed as an advocate to act on behalf of the respondent in the boundary dispute. The evidence showed that the applicant attended meetings as a friend, not in a professional capacity, and that all travel and accommodation expenses were paid by the respondent. The applicant did not provide sufficient evidence to justify the claimed instruction fees of Kshs. 3,000,000. Furthermore, the applicant was found to be holding Kshs. 650,000 for unrelated transactions, which was not accounted for in the bill. As a result, the court dismissed the entire bill of costs, finding that the applicant was not entitled to the fees claimed.
Court Disposition
bill of costs dismissed with costs to the respondent
Orders
- The applicant's bill of costs dated 11th March 2010 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
MISCELLANEOUS APPLICATION 95 OF 2010
IN THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF THE ADVOCATES REMUNERATION ORDER
NON CONTENTIOUS MATTER RELATING TO PLOTS KWALE/DIANI/1640 TO KWALE /DIANI/1649 AND KWALE/SHIMONI/72
AND
IN THE MATTER OF TAXATION OF ADVOCATE-CLIENT BILL OF COSTS
MUGAMBI & CO. ADVOCATES………………………………………..…………….APPLICANT
VERSUS
ERASTUS MUTHURI KARAGANIA…….....………………….………………..…RESPONDENT
RULING
Before me is an Advocate-Client Bill of Costs dated 11th March 2010. Mugambi & Co. Advocates is the Applicant and Erastus Muthuri Karagania is the Respondent. In item 1, the Applicant details his work as follows: Taking instructions to re-establish the boundaries of ten plots KWALE/DIANI/1640 to KWALE/DIANI/1649, traveling to Mombasa/Kwale to the site with the surveyor when we were chased away by the neighbours. Reporting the matter to Diani Police Station on 1/4/2009. Preparing Police Statement by Karagania many meetings with the Police, Land Registrar, District Officer. Several meetings with the local chief and the neighbours to resolve the issue of the beacon. Declaring a boundary dispute with the Land Registrar, Surveyor and neighbor. Meeting postponed several times because of the hostility of the neighbours. Having several meetings with the neighbours and hiring motor vehicle to travel to Kwale. The value of the ten plots KWALE/DIANI/1640 to 1649 estimated at Kshs. 30,000,000/-Many meetings with Erastus Muthuri Karagania in his office etc.
During the hearing of this taxation, both the Applicant and the Respondent testified. In brief, the applicant testified that he was told to go and re-establish the boundaries, travel with a surveyor on various occasions held over the boundary disputes. In his evidence he have evidence is his travel and accommodation costs. He admitted that he holds Kshs. 650,000/- monies paid to him for various transactions he undertook for Respondents which relates to other matters not related to the subject of this Bill. The Respondent testified that he did not instruct the Applicant, but that the Applicant attended the meetings with the surveyor as a friend. Applicant admits that all air tickets were paid by the Respondent.
The Respondent testified that he was summoned by the Land Registrar over the boundary disputes of his plots in Kwale/Diani area. Since he was unwell, Mr. Mugambi offered to attend the meeting on his behalf, as a friend. He therefore attended the meetings as his friend and not in his position as an Advocate. The Respondent testified further that he facilitated for his travel, stay and taxi services in Mombasa. That the Applicant is holding his monies for plots that were sold which he has not accounted for. He also stated that he gave Mugambi a plot Kwale/Diani 1640, which the Applicant instructed him to transfer the same to a third party, and he did so.
I have considered the submissions filed by both parties. The issue is whether the Applicant is entitled to the fees claimed. I agree with the respondent’s counsel’s submissions on the un-procedural way that the Applicant has drawn his bill of costs. In light of the provisions of Article 159 (2) (d) of the Constitution, I will proceed to tax the bill. From the evidence before me, it is clear that the Respondent paid all the travel and accommodation expenses, therefore Items 2 – 14 are taxed off. I remain with Item 1. The Applicant is not a surveyor, and therefore e could not be instructed to go to re-establish boundaries of the plots. It is apparent that he attended meetings on behalf of the Respondent as a friend, and was rewarded with a plot. I also find that the Applicant has failed to adduce evidence that he is entitled to the sum of Kshs. 3Million as instructions fees. It is apparent that he is holding Kshs. 650,000/- received by him for transactions he did for the Respondent.
I find that the Applicant has failed to establish the items claimed in this Bill of Costs dated 11th of March 2010, and I dismiss it with costs to the Respondent.
I apologize for the delay in delivering this ruling.
Dated and signed this13th day of July 2012.
R. OUGO
JUDGE
Delivered in Chambers this13th day of July 2012.
GICHOHI SPDR
In the presence of:-
………………………………………..For the Applicant
………………………………………..For the Respondent
………………………………………..Court Clerk