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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 3601 (KLR)

Maru v Maru; Dosani (Interested Party) (Environment and Land Case Civil Suit 438 of 2013) [2022] KEELC 3601 (KLR)

High Court of Kenya (court name not stated on the face of the judgment)
7 July 2022
SOS. Okong'o
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed clients may switch advocates, and ordered a law firm claiming KES 4.5 million in fees to prove them through formal taxation.

What this practically means

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Executive summary

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The interested party, Nelson Harun & Co Advocates' former client, moved the court by notice of motion dated February 8, 2021 seeking review of orders made on October 28, 2019, which had directed that Kshs 8,000,000/- held by the defendant's advocates, Majanja Luseno & Co Advocates, be deposited in an interest-earning joint account in the names of the interested party and Nelson Harun & Co Advocates. The interested party had since appointed Tariq Khan & Associates Advocates, who proposed a joint account in the names of the two firms; Nelson Harun & Co Advocates refused. The application also sought an order compelling Nelson Harun & Co Advocates to file and tax its bill of costs, it having claimed fees of Kshs 4,500,000/- without filing a bill. Nelson Harun & Co Advocates opposed the application, contending the court lacked jurisdiction to order taxation and that the review was brought after inordinate delay, which had allegedly cost over Kshs 2,000,000/- in lost interest. The court found the order of October 28, 2019 conferred liberty to apply, that the interested party had a right to choose her advocate, and that no prejudice would flow from varying the account names. On taxation, the court held that a firm which came to court to secure its costs could not challenge the same court's jurisdiction to direct taxation. The application was allowed in its entirety: the deposit was to be made by banker's cheque and lodged in a joint account of the two firms within 21 days, the bill was to be filed for taxation, and each party was to bear its own costs of the application.

Key legal issues

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01

Whether the October 28, 2019 order should be varied to name the new firm on record in the joint account order

Holding

The prayer was merited; no prejudice would be suffered by Nelson Harun & Co Advocates and the interested party's right to choose her advocate prevailed

Reasoning

The court noted the order gave liberty to apply, the interested party had formally appointed Tariq Khan & Associates, and the delay in opening the joint account was not attributable to her. The court found no valid reason to refuse varying the names in the order so the deposit could be made in a joint account of the two firms.

p. 3
02

Whether the court had jurisdiction to compel Nelson Harun & Co Advocates to file its bill of costs for taxation

Holding

Yes; the firm itself sought the court's protection for its costs, and taxation was necessary to determine what was deductible from the Kshs 8,000,000/-

Reasoning

The order of October 28, 2019 was made pending assessment of costs and was not to last indefinitely. The firm having approached the same court to secure its fees could not resist that court's direction to tax its bill, and the court retained power to discharge the order if the firm failed to pursue assessment.

p. 3

Legal principles established

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  • A litigant has the right to change advocates, and an order reserving liberty to apply may be varied to substitute the incoming firm in a joint account order where no prejudice is shown
  • A party cannot invoke the jurisdiction of a court to secure its costs and simultaneously challenge that court's jurisdiction to direct taxation of the same bill

Court orders

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  1. 1.The firm of Majanja Luseno & Co Advocates shall forthwith issue a banker's cheque in the sum of Kshs 8,000,000/- held on behalf of the interested party in favour of Nelson Harun & Co Advocates and Tariq Khan & Associates Advocates and deliver it to the firm of Tariq Khan & Associates Advocates
  2. 2.The firm of Nelson Harun & Co Advocates and Tariq Khan & Associates Advocates shall deposit the said cheque within 21 days of receipt in an interest earning joint bank account in their names in a reputable bank in Nairobi pending determination of the costs payable by the interested party to Nelson Harun & Co Advocates or further orders
  3. 3.The firm of Nelson Harun & Co Advocates shall forthwith file its bills of costs in respect of the matters in which it acted for the interested party for taxation
  4. 4.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 52
Jurisdiction invoked
Inherent and supervisory powers of the High Court over proceedings before it, including liberty to apply reserved in the order of October 28, 2019

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, "Maru v Maru; Dosani (Interested Party) (Environment and Land Case Civil Suit 438 of 2013) [2022] KEELC 3601 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3601/eng@2022-07-07

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