[2008] KEHC 2774 (KLR)
The court held that the Civil Procedure Act does not apply to matters relating to the Advocates Act, specifically in the context of taxation of costs between advocate and client. The Advocates Remuneration Order provides a comprehensive and exclusive procedure for objecting to taxed costs, and applications seeking...
Source-derived case information.
- Citation
- [2008] KEHC 2774 (KLR)
- Parties
- Plaintiff: Nyamogo & Nyamogo Advocates; Defendant: Joseph Mboi Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 201,202,203,205 & 200 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Client Applications and for Costs
- Outcome
- client's applications dismissed with costs to the advocate
- Judges
- MM Kasango
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Striking Out Applications, Stay of Execution, Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nyamogo & Nyamogo Advocates
Plaintiff
Joseph Mboi Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Client Applications and for Costs
Legal Issues
- 1 Whether the Civil Procedure Act applies to matters relating to the Advocates Act and taxation of costs.
- 2 Whether the client is entitled to a stay of execution of taxed costs under the Civil Procedure Act.
- 3 Whether the applications dated 29th September 2006 and 23rd October 2006 are competent.
Ratio Decidendi
The court held that the Civil Procedure Act does not apply to matters relating to the Advocates Act, specifically in the context of taxation of costs between advocate and client. The Advocates Remuneration Order provides a comprehensive and exclusive procedure for objecting to taxed costs, and applications seeking to invoke the Civil Procedure Act for stay of execution or setting aside of taxation orders are incompetent. The court further found that stay of execution cannot be granted in respect of taxed costs, as established by binding precedent. Consequently, the client’s applications dated 29th September 2006 and 23rd October 2006 were dismissed as incompetent, and costs were awarded...
Court Disposition
client's applications dismissed with costs to the advocate
Orders
- The client’s applications dated 29th September 2006 and 23rd October 2006 are dismissed.
- Costs of the dismissed applications are awarded to the advocate.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Misc Civ Appli 201 of 2006
NYAMOGO & NYAMOGO ADVOCATES.……………........………….. PLAINTIFF
VERSUS
JOSEPH MBOI MWANGI ….…..…………………………………… DEFENDANT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC CIVIL APPL. NO. 202 OF 2006
NYAMOGO & NYAMOGO ADVOCATES.……………........…………. PLAINTIFF
VERSUS
JOSEPH MBOI MWANGI ….…..……………………………...…… DEFENDANT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC CIVIL APPL. NO. 203 OF 2006
NYAMOGO & NYAMOGO ADVOCATES.…………......…………….. PLAINTIFF
VERSUS
JOSEPH MBOI MWANGI ….…..………………..………………… DEFENDANT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC CIVIL APPL. NO. 205 OF 2006
NYAMOGO & NYAMOGO ADVOCATES.…….........……………….. PLAINTIFF
VERSUS
JOSEPH MBOI MWANGI ….…..……………….………………… DEFENDANT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC CIVIL APPL. NO. 200 OF 2006
NYAMOGO & NYAMOGO ADVOCATES.…………………………. PLAINTIFF
VERSUS
JOSEPH MBOI MWANGI ….…..……………….……………….. DEFENDANT
RULING
The parties by consent agreed that the court do one ruling in respect of all the above files. The application is similarly in all the files and is dated 18th December 2007. By that application the advocate seeks the dismissal of the client’s application dated 23rd October 2006. The background of this matter was the taxation of the advocate- client Bill of Costs on 27th September 2006. A Certificate of Costs was issued on 16th October 2006. The client in that regard made an application by Notice of Motion dated 29th September 2006. By that application the client sought the setting aside of the order of taxation and the stay of execution. The client did not prosecute that application but instead went further and filed an objection under rule 11 of the Advocates Remuneration Order. The client yet again filed another application dated 23rd October 2006. By that application the client sought stay of execution of the taxed costs and a declaration that the full amount of those costs had been paid. The application now for this ruling, made by the advocate, that is the Chamber Summons dated 18th December 2007 is brought under order VI rule 13 (1) (b) (c) and order XVI rule 5 (d). It seeks to strike out the client’s application dated 23rd October 2006. Having considered the application and the arguments placed before court I am of the firm view that the Civil Procedure Act does not apply to matters relating to the Advocates Act. I therefore make a finding that the prayers sought by the client for stay of execution cannot be granted. The Advocates Remuneration Order has elaborate procedures laid out for objecting to taxed costs. The application therefore dated 29th September 2006 and 23rd October 2006 are therefore incompetent for seeking to rely on the Civil Procedure Act. In the application for consideration before court the advocate has also relied on the Civil Procedure Act. Although so relying on that act I find that the prayers sought can be entertained under the inherent jurisdiction that the court always has. That inherent jurisdiction cannot be defeated by quoting the rules of the Civil Procedure Act. Having made a finding that there cannot be stay of taxed costs I find that the client’s both applications must fail. In making that finding I rely on the case of Francis Kabaa v Nancy Wambui and Jane Wanjiru Civil Application No. Nairobi 298 of 1996 (113/96 UR) where the Court of Appeal had the following to say
“In any case, even if that were so, the appellant, if he succeeds in his appeal, would be refunded his costs. Furthermore, we do not think that stay can be granted in respect of costs.”
The court therefore does hereby dismiss the client’s applications dated 29th September 2006 and 23rd October 2006 with costs of the same being awarded to the advocate. The advocate is also awarded costs of this Chamber Summons dated 18th December 2007.
Dated and delivered at Nyeri this 16th day of April 2008.
MARY KASANGO
JUDGE