[2021] KEHC 9295 (KLR)
The court held that the applicant had erroneously filed the advocate-client bill of costs as a criminal miscellaneous cause instead of a civil cause. Since the pursuit of legal fees constitutes a civil debt, the proper procedure required the matter to be filed as a civil cause. The court found the preliminary...
Source-derived case information.
- Citation
- [2021] KEHC 9295 (KLR)
- Parties
- Applicant: Waweru Kihara and Company Advocates LLP; Respondent: Fredrick Martin Muli
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 129 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Preliminary Objection Ruling
- Outcome
- Matter struck out with costs to the respondent. Applicant at liberty to file afresh as a civil cause.
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Misfiling of Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waweru Kihara and Company Advocates LLP
Applicant
Fredrick Martin Muli
Respondent
Procedural Posture
Criminal Miscellaneous Application / Preliminary Objection Ruling
Legal Issues
- 1 Whether the filing of an advocate-client bill of costs as a criminal miscellaneous cause is proper.
- 2 Whether the court should strike out the matter for being filed under the wrong cause type.
- 3 Whether costs should be awarded to the respondent.
Ratio Decidendi
The court held that the applicant had erroneously filed the advocate-client bill of costs as a criminal miscellaneous cause instead of a civil cause. Since the pursuit of legal fees constitutes a civil debt, the proper procedure required the matter to be filed as a civil cause. The court found the preliminary objection merited, struck out the matter for being improperly before the court, and awarded costs to the respondent. The applicant was granted liberty to file the matter afresh through the correct civil procedure channel.
Court Disposition
Matter struck out with costs to the respondent. Applicant at liberty to file afresh as a civil cause.
Orders
- This matter is struck out with costs for being improperly before the court as a criminal cause instead of a civil cause.
- The applicant is at liberty to file the cause through the proper civil channel before the Deputy Registrar.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL MISC. APPLICATION CAUSE NO. 129 OF 2018
IN THE MATTER OF THE ADVOCATES ACT CAP 16 LAWS OF KENYA ADVOCATES REMUNERATION ORDER
AND
IN THE MATTER OF TAXATION OF ADVOCATES – CLIENT BILL OF COSTS
WAWERU KIHARA AND COMPANY ADVOCATES LLP – APPLICANT
VERSUS
FREDRICK MARTIN MULI…………………….……..……RESPONDENT
R U L I N G
1. Before me is a preliminary objection raised by the Respondent on account of Miscellaneous Cause relating to taxation of advocate client bill of costs.
2. It is evidence that the Applicant wrongly filed the miscellaneous cause as a Criminal Cause rather than a Civil Cause. This court has noted the parties in this cause have engaged in linguistic contestation over a trivial matter and they have really excelled because they have punctuated the contest with highsounding phrases, idioms and vocabulary which in common street parlance is “Kingeresa mingi” with no solution in sight. In my considered view the same was quite unnecessary. All that was required was simply for the Applicant to simply concede that he made an error by presenting his advocate client bill of costs through a Miscellaneous Criminal Cause instead of a Civil Cause because he is pursuing his legal fees which is a civil debt.
3. To save on Judicial time and avoid unnecessary costs this court hereby gives the following direction.
i. This matter is improperly before this court because the Applicant is pursuing a Civil Cause. This cause is therefore struck out with costs.
ii. The Applicant is at liberty to file the cause through the proper channel before the Deputy Registrar of this court if he is to agree with his erstwhile client regarding his legal fees.
iii. The Applicant shall pay costs to the 15000 Respondent which I hereby assess at Ksh.15,000/= (Fifteen thousand only).
Dated, Signed and Delivered at Kitui this 26th day of January 2021.
R.K.Limo
JUDGE