Ambwere TS & Associates v Martin Kivuva Musonde & others [2022] KEELC 1572 (KLR)
The bottom line
#A Kenyan court ruled that a man whose name never appeared in the original lawsuit cannot be forced to pay the lawyers' fees for that suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was a plaintiff in Mombasa ELC No. 81 of 2016 (OS) and thus liable for the Advocate's fees
The court perused the originating summons and the consent to file a representative suit, found the applicant's name absent, and concluded he was never a plaintiff and cannot be liable for the Advocate's fees.
The court examined the Originating Summons filed on 21 April 2016 in the names of Frank Nyambu Wakufwa, Musa Juma Shoghosho, Jimmy K. Mongo, George Gamba Zombo & 37 Others, together with the consent to file a representative suit listing the 37 others. The applicant's name did not appear among them. Without being a plaintiff, no Advocate/Client relationship existed with him, and on that ground alone the application to set aside attachment had to be allowed.
Whether execution of the costs judgment can be levied against a non-party
Execution was set aside against the applicant; the judgment binds only the 41 plaintiffs in the suit.
Since the applicant was not a party to the proceedings giving rise to the bill of costs, execution against him amounted to levying execution against a person who is not a party to the proceedings. The court set aside the attachment against him and clarified that the judgment could only be executed against the 41 plaintiffs. The Advocate's application dated 25 January 2021, which sought to preserve the interim position or obtain security, was found unmerited and dismissed.
Legal principles established
#- An Advocate/Client relationship, and hence liability for fees, can only exist between the Advocate and a person who instructed him
- A judgment on an Advocate/Client Bill of costs can only be executed against the parties to the suit in which the retainer arose
Court orders
#- 1.Allowed M/s B.M Musau & Company Advocates to come on record for the applicant
- 2.Set aside the execution of the judgment in relation to the Advocate/Client Bill of costs against the applicant
- 3.Declared that the judgment entered in favour of the Advocate can only be executed against the 41 plaintiffs in Mombasa ELC No. 81 of 2016 (OS) and no other person
- 4.Dismissed the application dated 25 January 2021
- 5.Awarded the applicant the costs of both applications against the Advocate
- Jurisdiction invoked
- Environment and Land Court Act, inherent powers to set aside execution; not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambwere TS & Associates v Martin Kivuva Musonde & others [2022] KEELC 1572 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1572/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.