1. The applicant/1st interested party herein filed a Notice of Motion application dated 18/10/2023 seeking orders that she and the 2nd interested party be joined to these proceedings, that the order made on 12th June 2024 that removed the applicant from representing the respondents /plaintiffs be vacated and that she be reinstated in this matter. She also sought an interim order restraining the respondents from disposing of title no Mgumo/Patsa Mazeras/45 pending the hearing and determination of the application.
2. The application is opposed by way of technicality and substance, but the sole subject of this ruling is the preliminary objection dated 16/12/2024 and only in so far as the same relates to the claim that this court is not possessed of jurisdiction to hear and determine the 1st interested party’s application. The relevant limb in that notice is couched as follows:
“The honourable court herein does not have jurisdiction to entertain the current application and the same should be struck out.”
3. Pursuant to this court’s orders, submissions were filed. The only submission on this issue by the plaintiffs who filed the objection is as follows:
“Further your Lordship we believe that this court does not have the jurisdiction to handle matters of taxation of the legal fees between advocates and their clients. It is the reason why the applicant filed the taxation with the Deputy Registrar and the matter should be handled there to conclusion.
Finally, as this honourable court handled this case to its conclusion and delivered judgment, we submit that the court is now functus officio vis-a-vis this suit.”
4. The 2nd interested party submitted on the issue thus:
“The applicant has not utilized all the remedies available for her to obtain her fees from the Plaintiffs/Respondents. We do not even know if the respondents were ever served and when they were served. Have they made any arrangements to pay the applicant or not. Has there been any communication between the applicant and the respondents concerning the costs to be paid to her by her former clients. What legal steps has applicant taken to obtain her fees from the respondents. The applicant has an option of subjecting the client to disciplinary action with the Law Society of Kenya if the applicant feels like the respondents are intentionally withholding the payment.
The law is very clear on taxation matters between the advocate and his client under the Advocates remuneration order and Act. After a case is concluded, an advocate submits a detailed Bill of Costs to the court, outlining all fees and disbursements incurred during the representation, this we believe the applicant did. Then Taxation Hearing begins and the Taxing Master reviews the Bill of Costs and determines the appropriate amount of fees to be awarded to the advocate, considering the applicable rules under the Advocates Remuneration Order.”
5. In this court’s view, the application before court has nothing to do with taxation of a bill of costs or a challenge to such taxation. The application before court has not asked this court to tax a bill of costs. It concerns the alleged unprocedural removal of an advocate from a position of being a representative of her client in court. It has everything to do with whether, if the advocate was wrongfully removed from the record, she can be reinstated at her instance. I fail to detect any substance in the submissions of the plaintiffs and the second interested party as would convince me that this court lacks jurisdiction to handle such a straightforward matter. If an application can, as was the motion dated 27/5/2024, be filed after judgment for leave to act in person, or for leave to come on record, and the consequence of the grant thereof is the wrongful removal of another advocate from the record, there is no justifiable ground either in substance or on a technicality, upon which such removed advocate can be gagged to prevent her from urging the court to correct the error; there may be other incidental orders in it, but that is basically what the application dated 18/10/2024 is all about.
6. For the foregoing reasons, I am not persuaded that the preliminary objection has any merit and it is hereby dismissed with costs to the applicant/1st interested party. As the concerned parties have complied by filing submissions, ruling on the application dated 18/10/2024 shall be delivered on 27/2/2025.
Ruling dated, signed and delivered at Malindi via electronic mail on this 26th day of February, 2025.