M A Mwinyi Advocate v Matano Mwasina [2021] KEELC 1953 (KLR)
The bottom line
#A Kenyan court refused to undo a Kshs 557,000 legal fee taxation because the client let his lawyer swear the affidavit instead of doing it himself.
What this practically means
#Executive summary
#Key legal issues
#Competency of the supporting affidavit sworn by the client's advocate
The application failed because the client himself did not swear any affidavit; the advocate could not competently depose to facts personal to the client, such as the value of the land and awareness of the taxation.
Order 19 Rule 3 confines affidavits to facts the deponent can prove of his own knowledge. The client faced a notice to show cause for civil jail yet did not depose; the advocate claimed land value without a valuation report. The court, citing Gerphas Alphonse Odhiambo v Felix Adiego, held advocates should be slow to swear affidavits unless privy to all relevant facts, and found the application unsupported by a competent affidavit.
Whether service of the taxation notice on the advocate on record in the main suit was proper
Service was proper because the advocate acting in the substantive suit is deemed, unless the contrary is shown, to act for the client in the taxation cause arising from that suit.
Taxation proceedings emanate from and are an appendage of the substantive suit and cannot be divorced from it. Rules 70-73 of the Advocates (Remuneration) Order contemplate notice being given to the advocate entitled to receive notice of taxation, namely the advocate acting in the main suit. Rule 73 addresses withdrawal, and no withdrawal by G.A Okumu & Co. was demonstrated. The court distinguished the Orders cited by the applicant as inapplicable to taxation notices.
Conduct of the applicant's counsel and exercise of discretion to set aside
Even considering counsel's conduct, there was a subsisting advocate-client relationship and the discretion to set aside could not be exercised in favour of a party deliberately obstructing the course of justice.
Counsel appeared in court on the notice to show cause before filing her Notice of Appointment of Advocate, demonstrating she was on record; the late filing was an afterthought and a gimmick. Applying Shah v Mbogo, the discretion is not designed to assist a person who has deliberately sought to obstruct or delay the course of justice, and the delay until after execution was inexcusable.
Legal principles established
#- An advocate acting for a client in a substantive suit must, unless the contrary is demonstrated, be deemed to act for the client in auxiliary proceedings such as taxation arising from that suit, and service upon such advocate is proper service.
- An advocate should not swear affidavits on behalf of a client where the client is available to depose to facts of his own knowledge; such affidavits may be given little or no weight.
Court orders
#- 1.The application to set aside the taxation is dismissed
- 2.The applicant to pay the costs of the application
- Jurisdiction invoked
- Advocates Act, Cap 16 (Advocate/client bill of costs taxation; application to set aside taxation) under the Environment and Land Court's jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M A Mwinyi Advocate v Matano Mwasina [2021] KEELC 1953 (KLR)", Case Analysis (2021). Mombasa ELC Miscellaneous Application No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1953/eng@2021-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.