Nesfood Industries Limited & 3 others v Nesfood Industries Limited

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND ADMIRALTY DIVISION MISC. APPLICATION NO. 36 OF 2017 NESFOOD INDUSTRIES LIMITED..........................CLIENT/APPLICANT -VERSUSTHOMAS K’BAHATI T/A K’BAHATI & COMPANY ADVOCATES......ADVOCATE/RESPONDENT ARISING FROM CIVIL SUIT NO. 247 OF 2012 ATTA (KENYA) LIMITED............................................................PLAINTIFF VERSUS NESFOOD INDUSTRIES LIMITED........................................DEFENDANT RULING 1. The issue revolving around this matter Misc application no. 35 of 2017 and Misc application no. 13 of 2017, will be resolved by the determination whether Nesfood Industries Limited (Nesfood) was a client of Thomas K’Bahati T/a K’Bahati & Co. Advocates (the advocate). 2. A client is defined in Section 2 of the Advocates Act cap 16 as follows: “client” includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs.” 3. Nesfood filed a notice of motion dated 7th April 2017 seeking stay of taxation, not only on this matter but also on Misc. 35 of 2017 and Misc. Application no. 13 of 2017. Nesfood alleges that the advocate acted without its instructions. This is denied by the advocate who stated that Nesfood had instructed him to act, even after he moved away from the partnership of M/s Lumumba Mumma & Kaluma Advocates. 4. I will restrict myself in discussing the parties submissions because in my consideration of this matter and the affidavit evidence, I find that it is of utmost importance for the court to receive viva voce evidence from the parties and their witnesses , if any, in order to determine whether the advocate is entitled to tax the bill of costs. 5. I therefore hereby order as follows: a. There shall be stay of taxation of the advocate/client bill of costs in this matter, in Misc application no. 35 of 2017 and Misc application no. 13 of 2017 until further orders of this court. b. At the reading of this ruling, this court shall give a date when pre-trial will be considered in Misc application no.36 of 2017, Misc application no. 35 of 2017 and Misc application no. 13 of 2017. DATED, SIGNED and DELIVERED at NAIROBI this 30th day of October, 2018.

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