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ELCDismissedMombasa ELC Miscellaneous Application No. 4 of 2018· [2021] KEELC 1953 (KLR)

M A Mwinyi Advocate v Matano Mwasina [2021] KEELC 1953 (KLR)

Environment and Land Court of Kenya
21 September 2021
4,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Munyao Sila J, 21 September 2021) on an application filed on behalf of Matano Mwasina, a client, seeking to set aside the ex parte taxation of an advocate/client bill of costs in favour of his former advocate, M.A. Mwinyi Advocate, taxed at Kshs. 557,087.15 on 28 February 2019. The advocate had filed the bill after a Notice of Change of Advocates brought in G.A Okumu & Company Advocates in the underlying adverse possession suit, Mombasa ELC No. 120 of 2007 (O.S). Taxation notices were served on Okumu's firm, which did not attend, and execution followed. The application, grounded on lack of service and the interests of justice, was supported only by an affidavit of Ms. Okumu, the client's advocate. The court held that the application must fail on that ground alone: the client, who faced commitment to civil jail, never swore an affidavit, and under Order 19 Rule 3 of the Civil Procedure Rules and the Odhiambo v Adiego authority, an advocate is incompetent to depose to facts personal to the client. Without prejudice, the court held that taxation proceedings arising from a contested suit are an appendage of that suit, so the advocate on record in the main suit is deemed to act in the taxation cause unless the contrary is shown, drawing on Rules 70-73 of the Advocates (Remuneration) Order. Service on Okumu's firm was therefore proper. Applying Shah v Mbogo, the court found counsel's conduct, including appearing on the notice to show cause before belatedly filing a notice of appointment, showed a subsisting advocate-client relationship and an attempt to evade fees. The application was dismissed with costs.

Key legal issues

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01

Competency of the supporting affidavit sworn by the client's advocate

Holding

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.

Reasoning

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.

p. 3
02

Whether service of the taxation notice on the advocate on record in the main suit was proper

Holding

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.

Reasoning

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.

p. 4
03

Conduct of the applicant's counsel and exercise of discretion to set aside

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application to set aside the taxation is dismissed
  2. 2.The applicant to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 9 Rule 2
  • Civil Procedure RulesOrder 9 Rule 3
  • Civil Procedure RulesOrder 19 Rule 3
  • Civil Procedure RulesOrder 5 Rule 8(1)
  • Civil Procedure RulesOrder 6 Rule 2(1)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 3 rule 12
  • Advocates Act, Cap 16Section 51(2)
  • Advocates (Remuneration) OrderRules 70-73
  • Evidence ActSection 2(2)
  • Constitution of KenyaArticle 50

Cases cited (5)

  • Shah vs. Mbogo
    1967 EA 116
  • Jaivirsinthinji T/A Darbar Wholesalers & 3 others vs. Prudential Drycleaners Limited
    (2004) eKLR
  • Lucy Bosire vs. Kehancha Division Land Dispute Tribunal & 2 Others
    (2013) eKLR
  • Machira & Co. Advocates vs. Arthur K. Magugu & Another
    Civil Appeal No. 199 of 2002 (2012) eKLR
  • Gerphas Alphonse Odhiambo v Felix Adiego
    [2006] eKLR
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

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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, "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.