Automated Summary
Key Facts
Kiume Kioko & Co. Advocates filed an application to stay execution of a Kshs. 2,561,443 decree against six respondents and objector Blue Ice Enterprises Co. Ltd. The respondents claimed they never instructed Kiume Kioko or Steve Kithi & Co. Advocates, alleging the certificate of taxation and judgment were fraudulently obtained. The court found Kiume Kioko filed the suit without instructions, leading to the orders being set aside as a nullity.
Tax Type
Taxation of legal costs under the Advocates Act, involving disputes over certificate of taxation and cost recovery procedures.
Issues
- The respondents claimed the certificate of taxation was fraudulently obtained, asserting they were never served with the bill of costs. The court considered the validity of this certificate and its role in the enforcement of the judgment.
- Blue Ice Enterprises (Carribana Bar & Grill) contested the legality of the property attachment, asserting ownership and arguing that neither the company nor its directors were parties to the suit. The court addressed the validity of the warrant of attachment and the objector's legal standing.
- The application challenged the Deputy Registrar's authority to issue the ex parte judgment and enforce the decree. The court evaluated whether Section 51(2) of the Advocates Act permitted such actions and if procedural irregularities invalidated the judgment.
- The court examined whether Kiume Kioko & Co. advocates had valid authorization to act on behalf of the respondents in Mombasa HCCC No. 609 of 2011 and subsequent proceedings. The respondents argued that the firm was never instructed to act for them, and that the certificate of taxation and ex parte judgment were obtained fraudulently.
Holdings
- The court allows the application dated 2013-11-21, setting aside the judgment and decree issued on 2013-11-01 and the certificate of taxation. The orders are nullified, and costs are awarded to the applicants against Kiume Kioko & Co. Advocates.
- The court allows the application dated 2013-09-15 by Blue Ice Enterprises Co. Ltd. t/a Carribana Bar & Grill, staying the execution of the decree and declaring the proclamation unlawful. Costs are awarded to the applicants.
- The court strikes out miscellaneous application no. 90 of 2013 as an abuse of process, filed by Kiume Kioko & Co. Advocates without instructions. The application is deemed null and void.
Remedies
- The application dated 15th November is allowed as prayed with costs.
- The judgment and decree issued on 1st November 2013 are set aside. The taxation and certificate of taxation and all consequential orders are set aside with costs to the applicants against Kiume Kioko & Co. advocates.
- Miscellaneous application no. 90 of 2013 is struck out as an abuse of the court process, and all orders obtained therein are declared a nullity.
Tax Issue Category
Other
Monetary Damages
561443.00
Legal Principles
The court applied costs principles under the Advocates Act, specifically Sections 48 and 51(2), to determine that Kiume Kioko & Co. Advocates lacked proper instructions to pursue costs against the respondents. The ruling emphasized that the application to recover taxed costs was an abuse of court process and that the Deputy Registrar's powers could not be used to enforce a bill of costs without valid instructions.
Disputed Tax Amount
2561443.00
Precedent Name
- MG Sharma Vs Uhuru Highway Development Ltd.
- L.N. Ngolya & co. advocates Vs. Jackson Murithi
- RV district Land Registration & another
- Kinlue Holdings Ltd. Vs. Whit Holdings and Macharia Njeru
Cited Statute
- Advocates Act
- Advocates Practice Rules
Judge Name
- S. MUKUNYA
- A. Omollo
Passage Text
- 'A retainer binds an advocate to act for his client in such manner as to protect his clients interests and not to jeopardize his interest'
- 1. I allow the application dated 21st November 2013. The same is allowed to the extent that judgment and the decree issued on 1st November 2013 are set aside. The taxation and certificate of taxation and all consequential orders are set aside with costs to the applicants against Kiume Kioko & Co. advocates.
- For all those reasons, 3. I Strike out miscellaneous application no. 90 of 2013 as an abuse of the process of the court and as being filed by a person without instructions and order that the orders obtained therein were a nullity.