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ELCPartially AllowedTwo motions dated 30th January 2018 (one applying mutatis mutandis to ELC App. No. 30 of 2017)· [2018] KEELC 180 (KLR)

Thomas K’bahati t/aK’bahati & Co Advocates v Beena Dinit Virchand Malde (Sued as the Executor of the Will of Vichand Mulji Malde Deceased [2018] KEELC 180 (KLR)

Environment and Land Court
14 December 2018
AOA. Omollo
446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an advocate cannot bill a client through his new firm for work instructions he admits receiving while at a previous firm.

What this practically means

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Executive summary

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This ruling by A. Omollo, J of the Environment and Land Court at Mombasa, dated 14th December 2018, determines two motions dated 30th January 2018 brought under section 3A of the Civil Procedure Act, seeking a determination on the issue of instruction to advocate/client and costs in the cause. The applicant, Beena Dimit Malde, supported the applications by her affidavit. The Respondent advocate, Mr K'Bahati, opposed through a replying affidavit dated 4th July 2018 in which he admitted instructing to represent the applicant in a substitution application and probate proceedings, contending that the law recognises individual advocates rather than firms for professional responsibility and liability, and that she remained liable for pending bills on account of the deceased. The court considered the parties' written submissions and the annexed bills, noting that the contested items were instructions fees and getting up fees. It found that K'Bahati did not deny working with the firm of Lumumba, Mumma & Kaluma when instructions were given in HCC No. 84 of 2005, and repeatedly deposed that he received the instructions while a partner in that firm. The court held that whether the instructions were personal was an issue between him and his former partners, not the client, that he could not claim the fees through his current firm on his own admission that the instructions predated it, and that he had not annexed evidence of partnership rather than employment. The two motions were allowed with no order as to costs, the ruling applying mutatis mutandis to ELC App. No. 30 of 2017.

Key legal issues

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01

Whether the Respondent can claim instructions and getting up fees as K'Bahati & Co Advocates

Holding

He cannot, because on his own admission the instructions were given before the existence of his current firm, and he produced no evidence he was a partner rather than an employee of the former firm.

Reasoning

The Respondent admitted in his replying affidavit, repeated in paragraphs 6, 7, 9 and 13, that he received the instructions while a partner at Lumumba, Mumma & Kaluma in HCC No. 84 of 2005. Any question whether the instructions were personal to him is a matter between him and his former partners, not the client. He also failed to annex evidence proving partnership as opposed to employment, so the objection to his claim succeeded.

p. 2

Legal principles established

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  • An advocate who admits receiving instructions while at a former firm cannot claim the instruction fees personally through his current firm against the client; any dispute over whether instructions were personal is between the advocate and his former partners, not the clients.

Court orders

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  1. 1.The court to make a determination on the issue of instruction to advocate/client
  2. 2.The two motions dated 30th January 2018 are allowed
  3. 3.The ruling applies mutatis mutandis to ELC App. No. 30 of 2017

Authorities

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Legislation

  • Civil Procedure ActSection 3A
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Thomas K’bahati t/aK’bahati & Co Advocates v Beena Dinit Virchand Malde (Sued as the Executor of the Will of Vichand Mulji Malde Deceased [2018] KEELC 180 (KLR)", Case Analysis (2018). Two motions dated 30th January 2018 (one applying mutatis mutandis to ELC App. No. 30 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/180/eng@2018-12-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.