[2003] KEHC 205 (KLR)
The court held that execution proceedings based solely on a taxed bill of costs, without a subsequent suit and decree or court order, are invalid. Section 48(1) of the Advocates Act requires that an advocate must file a suit to recover costs after taxation, and only after obtaining a decree or order can execution...
Source-derived case information.
- Citation
- [2003] KEHC 205 (KLR)
- Parties
- Applicant: G.B.K. Akhaabi t/a Akhaabi & Company Advocates; Respondent: O. U. Alozie
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1424 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion
- Outcome
- application allowed
- Legal Topics
- Execution of Decrees, Taxation of Costs, Advocate Client Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G.B.K. Akhaabi t/a Akhaabi & Company Advocates
Applicant
O. U. Alozie
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion
Legal Issues
- 1 Whether execution proceedings can be commenced on a taxed bill of costs without a decree or court order.
- 2 Whether the issuance of a prohibitory order against LR No. 7158/32 was valid in the absence of a decree or order.
- 3 Whether the advertised sale of LR No. 7158/32 was irregular and a nullity.
Ratio Decidendi
The court held that execution proceedings based solely on a taxed bill of costs, without a subsequent suit and decree or court order, are invalid. Section 48(1) of the Advocates Act requires that an advocate must file a suit to recover costs after taxation, and only after obtaining a decree or order can execution proceed. Since no such suit was filed and no decree or order was issued, all execution processes, including the prohibitory order and the advertised sale of LR No. 7158/32, were nullities. The absence of opposition to the application meant the applicant's facts were uncontested, and the court found all execution steps taken to be void ab initio.
Court Disposition
application allowed
Orders
- All execution proceedings arising from the taxed bill of costs are declared invalid and void.
- The prohibitory order against LR No. 7158/32 is set aside as a nullity.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CIVIL APPLICATION NO.1424 OF 2002
G.B.K. AKHAABI T/a
AKHAABI & COMPANY ADVOCATES…..APPLICANT/ADVOCATES
V E R S U S
O. U. ALOZIE ………………….………….………RESPONDENT/CLIENT
R U L I N G
This is an application by way of Notice of Motion dated 5. 12. 2002 in which the Applicant seeks orders that;
(1) That execution application was a nullity and or irregular for want of decree/order to be executed
(2) That the issuance of a prohibitory order against LR No. 7158/32 was a nullity and or irregular for want of decree or order to be executed.
(3) In the alternative, the advertised sale of LR No. 7158/32 was irregular and a nullity.
Affidavit in support by Steven Ruphinus Adere sworn on 5. 12. 2002 in which he says that he filed and served his Notice of Change in this case on 14. 12. 98 but that M/s Akhaabi and Company filed a bill of costs on 24. 12. 98 and that the said bill was agreed at Kshs.200,000/-. So in execution application was filed on 4. 9.99 then on 6. 10. 99 attachment prohibitory order over LR No. 7158/32 was issued and submissions on reserve price although started 8. 6.2001 were not completed because the Deputy Registrar died, thus there was no valid warrants or valid notification of sale since reserve price was not fixed besides, he says the auctioneers did not serve notification of sale.
Mr. Adere in further submission said that Ms Akhaabi & Company Advocates ought to have filed a suit against their client under Section 48(1) of Advocates Act to recover costs. But here they merely taxed a bill and executed it straight after taxing the bill without filing a suit but without a Court order you cannot execute any decree under Order 21 Rule 6 of the Civil Procedure Rules.
Section 48(1) of Cap 16 provides: -
“Subject to this Act, no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs which may be in summarized form, signed by the advocate or a partner in his firm has been delivered or sent by registered post to the client unless there is reasonable cause to be verified by affidavit filed with the plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local limits of the courts’ jurisdiction, in which event action may be commenced before expiry of the period of one month.”
Subject to subsection 1;
(2) A suit may be brought for the recovery of costs due to an advocate in any court of competent jurisdiction.”
There was no opposition to this application and therefore, the facts deponed to herein are not controverted. It is, therefore, clear that orders relating to execution are invalid and void in so far as they originate from the taxed bill. No process taken in execution can be validated. They are all void and I so order.
The application, therefore, succeeds with costs.
DATED this 20th day of June 2003.
A.I. HAYANGA
JUDGE
Read to Mr. Adere for Applicant