[2018] KEHC 10208 (KLR)
The court found that the central issue—whether Nesfood Industries Limited was a client of the advocate and whether the advocate acted on proper instructions—could not be resolved on affidavit evidence alone. The court determined that viva voce evidence from the parties and their witnesses was necessary to establish...
Source-derived case information.
- Citation
- [2018] KEHC 10208 (KLR)
- Parties
- Applicant: Nesfood Industries Limited; Respondent: Thomas K’Bahati t/a K’Bahati & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 36 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Stay of Taxation Pending Viva Voce Evidence
- Outcome
- Stay of taxation granted pending viva voce evidence.
- Judges
- MM Kasango
- Legal Topics
- Advocate Client Relationship, Taxation of Costs, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nesfood Industries Limited
Applicant
Thomas K’Bahati t/a K’Bahati & Company Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Stay of Taxation Pending Viva Voce Evidence
Legal Issues
- 1 Whether Nesfood Industries Limited was a client of Thomas K’Bahati t/a K’Bahati & Company Advocates.
- 2 Whether the advocate acted on instructions from Nesfood Industries Limited.
- 3 Whether the advocate is entitled to tax the bill of costs against Nesfood Industries Limited.
Ratio Decidendi
The court found that the central issue—whether Nesfood Industries Limited was a client of the advocate and whether the advocate acted on proper instructions—could not be resolved on affidavit evidence alone. The court determined that viva voce evidence from the parties and their witnesses was necessary to establish the existence and scope of the advocate-client relationship. Consequently, the court ordered a stay of taxation of the advocate/client bill of costs in this and related matters until further orders, pending the taking of oral evidence to resolve the factual dispute.
Court Disposition
Stay of taxation granted pending viva voce evidence.
Orders
- There shall be stay of taxation of the advocate/client bill of costs in this matter, in Misc application no. 35 of 2017 and Misc application no. 13 of 2017 until further orders of this court.
- At the reading of this ruling, the court shall give a date when pre-trial will be considered in Misc application no.36 of 2017, Misc application no. 35 of 2017 and Misc application no. 13 of 2017.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
MISC. APPLICATION NO. 36 OF 2017
NESFOOD INDUSTRIES LIMITED..........................CLIENT/APPLICANT
-VERSUS-
THOMAS K’BAHATI T/A
K’BAHATI & COMPANY ADVOCATES......ADVOCATE/RESPONDENT
ARISING FROM CIVIL SUIT NO. 247 OF 2012
ATTA (KENYA) LIMITED............................................................PLAINTIFF
VERSUS
NESFOOD INDUSTRIES LIMITED........................................DEFENDANT
RULING
1. The issue revolving around this matter Misc application no. 35 of 2017 and Misc application no. 13 of 2017, will be resolved by the determination whether Nesfood Industries Limited (Nesfood) was a client of Thomas K’Bahati T/a K’Bahati & Co. Advocates (the advocate).
2. A client is defined in Section 2 of the Advocates Act cap 16 as follows:
“client” includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs.”
3. Nesfood filed a notice of motion dated 7th April 2017 seeking stay of taxation, not only on this matter but also on Misc. 35 of 2017 and Misc. Application no. 13 of 2017. Nesfood alleges that the advocate acted without its instructions. This is denied by the advocate who stated that Nesfood had instructed him to act, even after he moved away from the partnership of M/s Lumumba Mumma & Kaluma Advocates.
4. I will restrict myself in discussing the parties submissions because in my consideration of this matter and the affidavit evidence, I find that it is of utmost importance for the court to receive viva voce evidence from the parties and their witnesses , if any, in order to determine whether the advocate is entitled to tax the bill of costs.
5. I therefore hereby order as follows:
a. There shall be stay of taxation of the advocate/client bill of costs in this matter, in Misc application no. 35 of 2017 and Misc application no. 13 of 2017 until further orders of this court.
b. At the reading of this ruling, this court shall give a date when pre-trial will be considered in Misc application no.36 of 2017, Misc application no. 35 of 2017 and Misc application no. 13 of 2017.
DATED, SIGNED and DELIVERED at NAIROBI this30thday of October,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Applicant
........................................... for the Respondent
MARY KASANGO
JUDGE