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ELCDismissedNotice of Motion dated 28.8.2014· [2016] KEELC 1138 (KLR)
Mohammed B. Bwanaadi & Another v Registered Trustee of National Christian of Kenya & Another [2016] KEELC 1138 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Mombasa court ruled that estate funds cannot pay legal fees for beneficiaries who joined a case too late and gained nothing from it.
What this practically means
#Executive summary
#The interested parties in this suit, beneficiaries of the estate of Khator Bin Salim, moved the Court by notice of motion dated 28th August 2014 seeking orders that their advocate's costs be paid from the estate's account, deposing that parties had agreed at a meeting on 21st January 2014 that costs would be paid from the estate, part of which (Kshs 11 million) was retained by the plaintiffs as costs. The administrators opposed, arguing the estate never retained the advocate, that the individual beneficiaries who instructed him should meet his fees from their shares, and that estate funds cannot be applied to such fees without leave of the Court. Perusing the record, the Court noted that the applicants joined the suit by consent order adopted on 4th December 2012, after the consent judgment of 23rd November 2012 had been recorded, and that a further consent of 4th June 2013 provided that each party would bear their respective costs. The applicants never sought to set aside the consent judgment or demonstrate bad faith by the plaintiffs, and the pleadings did not support their allegations of fraud. Applying the principle that costs follow the events, the Court held that the applicants' joinder was neither necessary nor of any effect, and that estate funds should not settle expenses incurred by some beneficiaries where the expense was unnecessary. The application was dismissed with no order on costs, delivered in Mombasa on 12th February 2016.
Key legal issues
#01
Whether costs of the interested parties' advocate may be paid from the estate
Holding
The application was dismissed; the applicants are not entitled to costs payable from estate funds
Reasoning
The applicants joined the suit only after the consent judgment of 23rd November 2012 was recorded and never sought to set it aside or demonstrate bad faith. Their joinder added nothing to the consent judgment, and the record did not support their averments of fraud. Costs follow the events and require necessary participation.
p. 2
Legal principles established
#- Costs follow the events; a party can only demand costs where it participated in the suit and such participation was necessary
- Estate funds should not be applied to settle expenses incurred by some beneficiaries where such expense was not necessary
Court orders
#- 1.The notice of motion dated 28.8.2014 is dismissed
- 2.No order on costs
- Jurisdiction invoked
- Inherent jurisdiction over costs in a suit before the Court (costs follow the events)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed B. Bwanaadi & Another v Registered Trustee of National Christian of Kenya & Another [2016] KEELC 1138 (KLR)", Case Analysis (2016). Notice of Motion dated 28.8.2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1138/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.