REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

MISC. CIVIL CASE NO. 20 OF 2020

AGGREY LUCAS KIDIAVAI P/A KIDIAVAI                                                                                      

ADVOCATES & COMPANY ADVOCATES...................................APPLICANT/RESPONDENT

VERSUS

KISHOR VEIJIPATANI......................................................................RESPONDENT/APPLICANT

RULING

On 2^nd September 2020, the Advocate filed a notice of motion before this court seeking to have his Advocate-Client Bill of Cost taxed by the Deputy Registrar of this court. The client was duly served with the Notice of Motion.  He appointed the firm of Wambeyi Makomere & Company Advocates to act on his behalf. In the several proceedings before the Deputy Registrar, both advocates appeared before court.  On 13^th July 2021, the parties agreed that the Advocate-Client Bill of costs would be disposed off by the parties filing written submissions. On that day, an advocate held brief for the advocate of the client. It was agreed that the written submissions would be presented to court by 10^th August 2021.  On that day, a Mr. Ngeywa appears on record as representing Mr. Wambeyi for the client. Ruling for the taxation was reserved for 21^st August 2021 but was delivered on 7^th September 2021.

The Advocates-Client Bill of cost was taxed at Kshs 163,005/=. The advocate applied to have the said Bill of costs executed. It was then that the client’s advocate filed an application seeking to have the taxation set aside, inter alia, on the grounds that the taxation had taken place in his absence. The client’s Advocate disowned having instructed the Mr Ngeywa who is said to have appeared on his behalf on 10^th August 2021 when the Bill of costs was taxed.  In the circumstances therefore, the client prayed for the Bill of costs to be re-taxed.  The application is opposed, the Advocate swore a replying affidavit in opposition to the application. The Advocate depone that he had been in communication with the client’s Advocate during the relevant times.  The client’s Advocate was aware of all the dates that the court had fixed for court events in the matter. He asserted that there was no reason put forward by the client why the taxation should be set aside since the client’s Advocate was present during the said taxation through an Advocate who held his brief.

During the hearing of the application, this court heard oral submissions made by Mr. Wambeyi for the client and Ms Efedha for the Advocate.  This court has carefully considered the said submissions. The issue for determination by this court is whether the client established its case for this court to set aside the taxation in question.  Mr Wambeyi submitted that he had not instructed an advocate to hold his brief on the particular day the taxation is said to have been done. On the other hand, Ms Efedha urged the court to find that indeed Mr Wambeyi had instructed the Advocate to hold his brief on the particular day.

This court was intrigued by the denial by Mr Wambeyi that he had instructed an Advocate to hold his brief on the particular day. This was because no Advocate can appear before a court claiming that he is holding brief on behalf of another Advocate if he did not have instructions to do so. This court requested Mr. Wambeyi to confirm from Mr. Ngaywa whether he had appeared on his behalf in court on the particular day.  Mr. Wambeyi swore a further affidavit indicating that there was no Advocate by the name Mr. Ngaywa who practices as an Advocate.

The question that then arose is whether the person who appeared in court as holding brief for Mr. Wambeyi was Mr. Ngeywa.  Mr Ngeywa denied that he appeared in court on the particular day. While this court was not persuaded that the court record could have misrepresented the parties who appeared before the court, and further while this court was not convinced that Mr. Wambeyi had not instructed an Advocate to hold his brief on that particular day, in the interest of justice, and since the client is not to blame for this sorry state of affairs, it will allow the application by Mr. Wambeyi but on terms.

The Advocate-Client Bill of costs taxed on 7^th September 2021 by the Deputy Registrar of this court is hereby set aside. The said Bill of cost shall be re-taxed before the Deputy Registrar. However, the client shall pay to the Advocate the cost of the application which this court assesses at Kshs 10,000/=.  The said amount shall be paid to the Advocate within 30 days of the date of this ruling. It is so ordered.

DATED AT KITALE ON THIS 18TH DAY OF MARCH, 2022

L. KIMARU

JUDGE