[2014] KEHC 125 (KLR)
The High Court found that there is no provision in the Advocates Remuneration Order for filing a reference to the High Court regarding costs assessed by the lower court. The proper procedure would have been for the applicant to seek review or setting aside of the assessment in the same magistrate's court. As such,...
Source-derived case information.
- Citation
- [2014] KEHC 125 (KLR)
- Parties
- Applicant: Nates & Associates; Respondent: Harrison Mulwa; Respondent: Magdaline Mulwa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 275 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Magistrate's Assessment of Advocate/client Bill of Costs
- Outcome
- application struck out as incompetent with costs to the respondents
- Judges
- BT Jaden
- Legal Topics
- Advocate Client Costs, Assessment of Costs, Review of Magistrate Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nates & Associates
Applicant
Harrison Mulwa
Respondent
Magdaline Mulwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Magistrate's Assessment of Advocate/client Bill of Costs
Legal Issues
- 1 Whether the High Court has jurisdiction to review or set aside the Magistrate's assessment of advocate/client bill of costs.
- 2 Whether the application to set aside the Magistrate's decision on costs was competent.
Ratio Decidendi
The High Court found that there is no provision in the Advocates Remuneration Order for filing a reference to the High Court regarding costs assessed by the lower court. The proper procedure would have been for the applicant to seek review or setting aside of the assessment in the same magistrate's court. As such, the application before the High Court was incompetent and could not be entertained. The court therefore struck out the application with costs to the respondents.
Court Disposition
application struck out as incompetent with costs to the respondents
Orders
- The application is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO. 275 OF 2011
IN THE MATTER OF A REFERENCE TO THE HIGH COURT OF THE SENIOR RESIDENT MAGISTRATE’S DECISION (OF THE 28TH NOVEMBER 2011) ON THE ASSESSMENT OF THE ADVOCATES/CLENT BILL OF COSTS
AND
IN THE MATTER OF THE ADVOCATES ACT, CHAPTER 16 OF THE LAWS OF KENYA
NATES & ASSOCIATES ……………….……………….… APPELLANT/APPLICANT
VERSUS
1. HARRISON MULWA
2. MAGDALINE MULWA ....................................................................... RESPONDENTS
R U L I N G
The application dated 7/12/2011 seeks the following orders:-
“That the Senior Resident Magistrate’s decision on the issue of Advocate/Client fees made on 28th November 2011 be set aside.
That this Honourable Court be pleased to re-assess and review the Advocate/Client bill of costs dated the 28th November 2011.
That costs of this application be provided for.”
According to the affidavit in support the bill of costs filed before the Magistrate’s Court was assessed at Kshs.76,000/= which was excessive and not assessed in accordance with the provisions of the applicable Advocates Remuneration Order.
The application is opposed. It is averred in the replying affidavit that the application is incompetent and should be struck out. It was further stated that the fees charged are in accordance with the law.
The application was canvassed by way of written submissions which I have duly considered.
Rule 11 (2) of the Advocates Remuneration Order 2009 which the Applicant’s counsel relied upon or any other Advocates Remuneration Order does not make any provision for the assessment of costs in the lower court. Under Order 21 rule 9 (2) costs in the lower court are assessed by the magistrate. There is no provision in the Advocates Remuneration Order for the filing of a reference to the High Court on costs assessed by the lower court. Consequently, the Applicant ought to have gone back to the same court to have the same set aside and/or reviewed.
With the foregoing the application is incompetent and I strike out the same with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 30th day of September 2014.
………………………………………
B. THURANIRA JADEN
JUDGE