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ELCAllowedMiscellaneous Application E017 of 2022· [2023] KEELC 15805 (KLR)

Samwel Owino Nyauke t/a Aluoch Odera and Nyauke Advocates v Homabay County Government

Environment and Land Court
22 February 2023
GOGMA Ongondo
424 words in judgment
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The bottom line

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The Environment and Land Court ordered Homa Bay County Government to pay its lawyer's fees after ignoring a served application, showing silence in court can be costly.

What this practically means

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Executive summary

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The applicant, an advocate trading as Aluoch Odera and Nyauke Advocates, moved the Environment and Land Court at Homa Bay by notice of motion dated November 1, 2022 seeking an order compelling the respondent, Homabay County Government, to settle advocate's fees arising from legal representation the applicant accorded the respondent in ELc Misc Case No E003 of 2020 (Homabay County Government v Dr Okello John Robert Liech and BOM of Rangwena Primary School), and that the annexed Advocate-Client Bill of Costs be taxed and deemed a decree of the Court. The application was supported by an affidavit of Samuel O Nyauke and grounds that the advocate took conduct of the matter until it was dispensed with, drew a bill of costs on October 25, 2022, served it on October 26, 2022, and that the respondent failed or neglected to remunerate the advocate. Counsel relied on an affidavit of service sworn on February 21, 2023 by Odera Aluoch showing the respondent was served. The respondent filed no reply. Citing Ogada v Mollin (2009) KLR 620, GMA Ongondo J held that a served party has the option to respond or not, found the application unopposed and meritorious, and allowed it in terms of prayers (a), (b) and (c), with costs of the application to the respondent.

Key legal issues

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01

Whether an unopposed application for settlement of advocate's fees and taxation of the bill should be granted

Holding

The application was allowed in full as prayed, the respondents having been served and having chosen not to reply.

Reasoning

The applicant served the respondent with the application, as evidenced by an affidavit of service sworn on February 21, 2023. The respondent did not file a reply. Relying on Ogada v Mollin, the court held that a served party has the option to respond or not, and the unopposed application was meritorious and allowed in terms of prayers (a), (b) and (c).

p. 2

Legal principles established

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  • A respondent served with an application who opts not to respond cannot resist an unopposed application.

Court orders

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  1. 1.An order that the Respondent/Client settle the Advocate's fees from the legal representation accorded to the Respondent in ELc Misc Case No E003 of 2020: Homabay County Government v Dr Okello John Robert Liech and BOM of Rangwena Primary School
  2. 2.The bill annexed to the application to be taxed and subsequently deemed a decree of the Court
  3. 3.Costs of the application to be borne by the respondents

Authorities

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Cases cited (1)

  • Ogada versus Mollin
    (2009) KLR 620

    A served party has an option to respond or not to an application.

Jurisdiction invoked
Advocate's claim for taxation of Advocate-Client Bill of Costs; reference to ELC Misc Case No E003 of 2020 in which the advocate acted

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, "Samwel Owino Nyauke t/a Aluoch Odera and Nyauke Advocates v Homabay County Government", Case Analysis (2023). Miscellaneous Application E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15805/eng@2023-02-22

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