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ELRCDismissedMisc. Application No. 153 of 2017 (and ELRC Cause No. 2365 of 2012)· [2019] KEELRC 912 (KLR)

Henry Athimbu Kurauka Advocate v Celestine Mwenda Munene [2019] KEELRC 912 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
16 September 2019
665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a client's attempt to stop attachment of his goods over unpaid advocate's fees, ruling the application was a repeat abuse of process.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge) disposed of a Notice of Motion dated 26 June 2019 by the Respondent, Celestine Mwenda Munene, seeking stay and setting aside of warrants of attachment and sale of moveable goods issued on 14 June 2019, together with an opportunity to defend a Bill of Costs, on the basis that the warrants offended a ruling of 11 April 2019 in Misc. Application No. 174 of 2015. The advocate applicants filed a Notice of Preliminary Objection, and the Court heard submissions on 10 July 2019. The Court noted that on 1 February 2019 it had dismissed an earlier application seeking identical orders, finding it an abuse of the court process; the present application, seeking the same orders without more, was likewise an abuse. On the merits, the record showed the Taxing Officer had on 27 February 2019 made a definitive finding that the Respondent was served with the Bill of Costs and filed submissions opposing it, so he could not claim denial of an opportunity to defend it. The 11 April 2019 ruling relied upon related to taxation in Succession Cause No. 659 of 2013, not to ELRC Cause No. 2365 of 2012, and there was no legal nexus between the two actions beyond the retainer of Kurauka & Co. Advocates. The Court affirmed that an advocate is entitled to costs in respect of each retainer. The application was dismissed as without merit, an abuse of process and vexatious, with costs assessed at Kshs 25,000/- to obviate further taxation proceedings.

Key legal issues

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01

Whether the application was an abuse of the court process

Holding

It was an abuse of process and vexatious as it sought the same orders already dismissed in Ruling No. 2 of 1 February 2019

Reasoning

The Court had on 1 February 2019 dismissed an application seeking identical orders, holding it was an abuse of the court process. Bringing a fresh application seeking the same relief, without more, amounted to a repeat abuse. The Court also independently verified the record showing service and participation in the taxation.

p. 2
02

Whether the Respondent had an opportunity to defend the Bill of Costs

Holding

He did; the Taxing Officer made a definitive finding of service and that the Respondent filed submissions in opposition

Reasoning

On review of the record, the Taxing Officer on 27 February 2019 made a definitive finding of fact that the Respondent was served with the Bill of Costs and filed submissions opposing it. He therefore could not claim denial of a chance to defend the bill from which the decree under execution arose.

p. 2
03

Whether the Ruling of 11 April 2019 in Misc. Application No. 174 of 2015 barred execution

Holding

It did not; that ruling related to a different matter with no legal nexus to this cause

Reasoning

The ruling relied upon arose from taxation of costs in Succession Cause No. 659 of 2013, not ELRC Cause No. 2365 of 2012. Apart from the fact that the Respondent had retained Kurauka & Co. Advocates, there was no nexus between the two actions, so the ruling offered no protection here.

p. 2

Legal principles established

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  • An advocate is entitled to costs in respect of each retainer or instructions from the client
  • A party cannot be heard to deny an opportunity to defend a bill of costs where the Taxing Officer found service and filing of submissions

Court orders

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  1. 1.The Respondent's application dated 26 June 2019 dismissed
  2. 2.Costs of the application to the Applicant assessed at Kshs 25,000/-

Authorities

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Legislation

  • Advocates ActCap 16
Jurisdiction invoked
Advocates Act Cap 16 of the Laws of Kenya

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, "Henry Athimbu Kurauka Advocate v Celestine Mwenda Munene [2019] KEELRC 912 (KLR)", Case Analysis (2019). Misc. Application No. 153 of 2017 (and ELRC Cause No. 2365 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/912/eng@2019-09-16

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