[2018] KEELC 180 (KLR)
The court found that the advocate, Mr K’Bahati, admitted to having received instructions while he was a partner at Lumumba, Mumma & Kaluma, prior to the formation of K’Bahati & Co Advocates. The issue of whether the instructions were personal is a matter between the advocate and his former partners, not the client....
Source-derived case information.
- Citation
- [2018] KEELC 180 (KLR)
- Parties
- Applicant: Thomas K’Bahati t/a K’Bahati & Co Advocates; Respondent: Beena Dinit Virchand Malde (sued as the Executor of the Will of Vichand Mulji Malde Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 31 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Motions Regarding Advocate Client Instruction Fees
- Outcome
- motions allowed; objection to advocate's claim upheld
- Judges
- AA Omollo
- Legal Topics
- Advocate Client Costs, Instruction Fees, Taxation of Costs, Law Firm Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas K’Bahati t/a K’Bahati & Co Advocates
Applicant
Beena Dinit Virchand Malde (sued as the Executor of the Will of Vichand Mulji Malde Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motions Regarding Advocate Client Instruction Fees
Legal Issues
- 1 Whether the advocate is entitled to claim instruction fees from the applicant under K’Bahati & Co Advocates for work done prior to the formation of the firm.
- 2 Whether the advocate acted in his personal capacity or as a partner/employee of Lumumba, Mumma & Kaluma at the time instructions were given.
- 3 Whether the applicant is liable for costs claimed by the advocate.
Ratio Decidendi
The court found that the advocate, Mr K’Bahati, admitted to having received instructions while he was a partner at Lumumba, Mumma & Kaluma, prior to the formation of K’Bahati & Co Advocates. The issue of whether the instructions were personal is a matter between the advocate and his former partners, not the client. Since there was no evidence provided to show that the instructions were personal or that Mr K’Bahati was not acting as a partner or employee of the previous firm, he cannot claim instruction fees from the applicant as K’Bahati & Co Advocates. The objection to the advocate's claim is therefore merited, and the motions are allowed.
Court Disposition
motions allowed; objection to advocate's claim upheld
Orders
- The two motions dated 30th January 2018 are allowed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
MISC APPLICATION NO. 31 OF 2017
IN THE MATTER OF: THE ADVOCATES ACT
AND
IN THE MATTER OF: TAXATION PF COSTS BETWEEN ADVOCATE AND CLIENT
AND
THOMAS K’BAHATI T/A
K’BAHATI & CO ADVOCATES..............................ADVOCATE APPLICANT
VERSUS
BEENA DINIT VIRCHAND MALDE (SUED AS THE
EXECUTOR OF THE WILL OF VICHAND
MULJI MALDE DECEASED........................................CLIENT/DEFENDANT
ARISING FROM HCC (OS) NO.423 OF 2001
BETWEEN
1. JANENDRAH RAICHAND SHAH
2. VIRCHAND MULJI MALDE
3. RAITLAL GHELA SAMAT.....................................................DEFENDANTS
VERSUS
MISTRY VALJI NARAN MULJI.......................................................PLAINTIFF
RULING
1. For determination are the two motions dated 30th January 2018 brought under the provisions of section 3A of Civil Procedure Act seeking orders
a. That the honourable court do make a determination on the issue of instruction to advocate /client.
b. That costs of the application be in the cause
2. The application is supported by the grounds listed on their faces and the affidavit of BEENA DIMIT MALDE in support thereof.
3. The Advocate filed a replying affidavit dated 4th July 2018 in opposition to the orders sought. Mr K’Bahati deposed that indeed the applicant instructed him to represent her in making the application for substitution as well as filing for the probate proceedings. That even if the applicant chose a different advocate to file the probate, the same didn’t shield her from being sued for pending bills on account of the deceased. It is K’Bahati’s evidence that the law only recognises individual advocates and not a firm for purposes of professional responsibility and/or liability.
4. The parties filed written submissions which I have herein read and considered. From the bills annexed I note that what is being contested is the instructions fees and the getting up fees pursuant to the instructions. Mr K’Bahati has not denied the averment contained in the letter dated 12th January 2018 that he worked with the firm of Lumumba, Mumma & Kaluma at the time instructions were given in HCC No.84 OF 2005. The Respondent has denied via his replying affidavit that he was an associate in the said firm. According to him, he deposed that he worked in the said law firm as a partner at the time when the instructions were given.
5. The Respondent has repeated in paragraphs 6, 7, 9 and 13 that he received instructions while he was a partner at Lumumba , Mumma and Kaluma. Whether the instructions were personal would be an issue between him and his former partners and not an issue between him and his clients. Therefore it is my considered opinion and I so hold that he cannot claim the instructions fees from the applicant as K’Bahati & Co Advocates on the basis of his own admission that the instructions were given before the existence of his current law firm. Secondly, he did not annex evidence that he was a partner and not an employee in the said firm. Thus I hold that the objection is merited and allow the two motions with no order as to costs. This ruling does apply mutatis Mutandis to ELC App. No. 30 of 2017.
Ruling delivered, dated and signed at Mombasa 14th this day of December 2018
A. OMOLLO
JUDGE