Shetandi v Musa Nandwa t/a Nandwa & Company Advocates
The bottom line
#The Environment and Land Court refused to stop auction of a client's property because he could not prove his former advocate had received the awarded costs.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution of the certificate of taxed advocate-client costs should issue pending determination of the Originating Summons
Stay refused because the applicant did not demonstrate that the respondent had received the party and party costs
The court found the parties agreed the respondent acted for the applicant and both party and party and advocate-client costs were taxed. The applicant's claim that the respondent held the party and party costs of KShs 957,341 was unsupported by any evidence. Applying the burden-of-proof principle, the court held the applicant might prove receipt at the hearing of the OS, but no basis existed to stay execution in the interim.
Whether the respondent ought to give credit for the KShs 100,000 in fees already paid
The issue was not open to the court at this stage as it should have been raised during taxation
The court held that any claim for credit for fees paid should have been raised during the taxation of the advocate-client bill of costs. Having not done so, the applicant could not have the court investigate that issue at the interlocutory stage of the Originating Summons. The argument therefore did not advance the application for stay.
Legal principles established
#- A party alleging that costs were received by the advocate bears the burden of proving it; interim stay cannot rest on unproven allegations
- Claims that an advocate should have given credit for fees paid at the taxation stage cannot be investigated by the court after taxation
Court orders
#- 1.Notice of Motion dated 29th November 2022 dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over advocate-client costs disputes arising from a land matter (Kakamega ELC No. 312 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shetandi v Musa Nandwa t/a Nandwa & Company Advocates", Case Analysis (2023). Environment & Land Case 19 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20383/eng@2023-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.