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Mutai Kipkemoi Advocates v Mabwai (Miscellaneous Application E026 of 2021) [2022] KEHC 2978 (KLR) (17 June 2022) (Ruling)
Neutral citation:
[2022] KEHC 2978 (KLR)
Republic of Kenya
Miscellaneous Application E026 of 2021
AN Ongeri, J
June 17, 2022
Between
Mutai Kipkemoi Advocates
Applicant
and
Samwel Kipngetich Mabwai
Respondent
Ruling
1.The Application coming for consideration in this ruling is the one dated 23/10/2021 seeking for judgment in favour of the Applicant against the Respondent in the sum of Kshs.912,614 in accordance with the bill of costs taxed on 8/9/2021 and certificate of costs dated 20/9/2021.
2.The Application is supported by the Affidavit of Joshua Kipkemoi Mutai dated 23/10/2022 in which it is deposed as follows;(I)That he represented the respondent in succession cause no.98 of 1994, where the same was concluded on the 19th of December 2019;(II)That after successful litigation, he filed advocate/client bill of costs dated the 21st of June, 2021, which was taxed and allowed at Kshs. 912, 614. 50;(III)That he was issued with a certificate of costs dated the 20th of September 2021;(IV)That it is imperative that the certificate of costs dated the 20th of September, 202, be converted into a decree and judgment together with interest at 14% p.a from the 8th of September, 2021 until payment in full.
3.The Respondent filed a Replying Affidavit dated 14/2/2022 sworn by Samwel Kipngetich Mabwai in which it is deponed as follows;(i)That at no time did Kipkemoi Mutai Advocates represent him in Kericho High Court succession cause no. 98 of 1994 and he should produce a signed Advocate-Client instruction note to that effect;(ii)That it was the firm of M/S Chelule & Co. Advocates that represented him in the said succession cause, which firm has since closed its offices;(iii)That while at the firm of M/S Chelule & Co. Advocates, the applicant did not accord him proper legal representation.
4.The parties filed written submissions in the Application as follows;The applicant submitted that he was the managing partner at the firm of Chelule& Co. Advocates, and was at all times in conduct of succession cause 98 of 1994. It was submitted that the firms of Chelule & Co. Advocates and that of Kipkemoi Mutai Advocates are one and the same firm, save for the change of name.
5.The applicant also submitted that the only mistake was that the firm of Kipkemoi Mutai advocates failed to file notice of change of advocates, which mistake the respondent should not rely on to avoid paying legal fees for services rendered. It was also submitted that at no point did the respondent ever complain of not being accorded proper legal representation and that the respondent reserved the right to change counsel if he ever felt that he was not being adequately represented.
6.The respondent on the other hand submitted that there never existed an Advocate-Client relationship between himself and the applicant and it is therefore untenable for the applicant to tax his bill while not acting for the respondent.
7.It was submitted that the applicant being part of the legal team at Chelule & Co. Advocates, never took instructions from the respondent because he did not accord him any proper legal representation.
8.I find that it is not in dispute that the Applicant was an associate in the firm of Chelule and Company Advocates when he represented the Respondent.
9.The Respondent did not raise the said issue during taxation and neither did he file a reference against the certificate of costs issued by the tax master.
10.The Application dated 23/10/2021 lacks in merit and the same is dismissed.
11.Judgment be and is hereby entered in favour of the Applicant against the Respondent as prayed in the sum of Kshs.912,614 together with costs and interest at court rates from date of the certificate of costs until payment in full.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE 2022.A. N. ONGERIJUDGE
