Background and Introduction
1. Before the Court is the application dated 13th December 2024, brought under Rule 61(1) of the Advocates Remuneration Order (ARO). The application seeks the following orders:
a) That the Advocate/Applicant do show cause why items 177 to 459 (both inclusive) of the Advocate/Client Bill of Costs dated 19th February 2021 should not be disallowed for having been improperly incurred, incurred without reasonable cause, or proved fruitless by reason of the Advocate’s default or negligence;
b) That the costs of and occasioned by this application be borne by the Advocate/Applicant.
2. The application is supported by the grounds on its face and the affidavit of NIZARALI DHANJI MOHAMED HUDANI. The client avers that the advocate represented him in Nairobi HCCC No. 639 of 2007 (“the suit”), in which he was the defendant. He states that the advocate became aware on 5th July 2013 that the plaintiff had ceased operations. Despite this, the advocate continued to prosecute the counterclaim and incurred substantial costs reflected in items 177 to 459 of the bill of costs, which he now seeks to recover.
3. The client’s position is that the continued prosecution of the counterclaim, despite the advocate’s knowledge of the plaintiff’s dissolution, amounted to negligence and was not in his best interests. He contends that the costs incurred were improper, without reasonable cause, and ultimately fruitless, as there was no realistic prospect of recovery against a dissolved party.
4. The advocate opposed the application through a replying affidavit, arguing that the application is an abuse of court process and is res judicata. He asserts that the issues raised were canvassed in earlier submissions, and that the Court had already directed the bill to proceed to taxation, effectively settling the matter.
Analysis and Determination
5. The main issues for determination are:
a) Whether the application is barred by the doctrine of res judicata;
b) Whether the costs listed in items 177 to 459 of the bill of costs were improperly incurred, without reasonable cause, or rendered fruitless by reason of the advocate’s default or negligence, within the meaning of Rule 61(1) of the ARO.
On Res Judicata:
6. Section 7 of the Civil Procedure Act embodies the principle of res judicata. As reiterated in Independent Electoral & Boundaries Commission V Maina Kiai & 5 Others, [2017] eKLR: “for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms”;
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
7. The Court of Appeal was instructive that for the doctrine of res judicata to apply, each and every one of the requirements set out under Section 7 of the Civil Procedure Act must therefore be satisfied cumulatively. It is not sufficient that some elements are met; the provisions are cast in conjunctive, not disjunctive, terms, meaning that all the conditions must coexist for the bar of res judicata to be effectively invoked.
8. In the present case, although similar concerns were raised in prior submissions, as acknowledged by the advocate, no formal application under Rule 61(1) was made, and no determination was rendered on the specific question of whether the impugned costs were improperly incurred. Submissions, however detailed, do not substitute for a judicial finding. The matter was never substantively adjudicated. Accordingly, I find that the application is not res judicata.
On Rule 61(1) of the ARO :
9. Rule 61(1) of the ARO empowers the court, on its own motion or upon application, to disallow costs that are improperly incurred, incurred without reasonable cause, or rendered fruitless by reason of undue delay, misconduct, or default by the advocate.
10. The purpose of this rule is to protect clients from bearing the financial consequences of their advocate’s dereliction of duty or imprudent conduct. It recognizes that while an advocate is entitled to compensation for services rendered, that entitlement does not extend to work that is negligent, unnecessary, or objectively futile.
11. The client has demonstrated that by 5th July 2013, the advocate was aware that the plaintiff company in the main suit had ceased operations. This is evident from the advocate’s own letter dated 6th July 2013, in which he wrote:
“The Plaintiff's advocate informed the court that the Plaintiff Company is no longer in operation and it would be important to know the Plaintiff's financial solvency so as to know whether we shall be able to execute in the event that we succeed in the counterclaim…”
12. This acknowledgement was followed, just two months later, by Gazette Notice No. 12819 of 6th September 2013, which formally announced the dissolution of the plaintiff company. Despite these developments, the client contends that the advocate continued to incur costs on the counterclaim for several years without offering the client proper advice on the futility or likelihood of recovery. Notably, the advocate has not disproved the assertion that the client was unaware of the 6th July 2013 letter until much later on 11th April 2014 nor has he produced any certificate or evidence of postage to confirm that the correspondence was sent to the client.
13. That said, Rule 61 contemplates a two-stage process. Before the Court may disallow any costs or make a compensatory order, the advocate must be given an opportunity to be heard. In appropriate cases, the matter may also be referred to the taxing officer for inquiry and report under Rule 61(2).
14. In the present case, I am satisfied that sufficient cause has been shown to require the advocate to answer the allegations made. A show cause hearing is therefore necessary to determine, on the merits, whether the impugned costs should be disallowed or refunded.
Disposition
15. Accordingly, the application dated 13th December 2024 is meritorious and succeeds to the extent stated. The following directions hereby issue:
a) The Advocate shall, within fourteen (14) days from the date hereof, show cause by way of a sworn affidavit why the costs listed in items 177 to 459 of the Advocate/Client Bill of Costs dated 19th February 2021 should not be disallowed pursuant to Rule 61(1) of the ARO.
b) The Client shall be at liberty to file and serve a replying affidavit within fourteen (14) days of service of the advocate’s show cause documents.
c) The parties shall thereafter file and exchange skeleton submissions limited to five (5) pages within fourteen (14) days each beginning with the Advocate who may, if necessary, file a supplementary affidavit with their submissions.
d) The costs of the present application shall abide by the outcome of the show cause proceedings.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. Before the Court is the application dated 13th December 2024, brought under Rule 61(1) of the Advocates Remuneration Order (ARO). The application seeks the following orders:
a) That the Advocate/Applicant do show cause why items 177 to 459 (both inclusive) of the Advocate/Client Bill of Costs dated 19th February 2021 should not be disallowed for having been improperly incurred, incurred without reasonable cause, or proved fruitless by reason of the Advocate’s default or negligence;
b) That the costs of and occasioned by this application be borne by the Advocate/Applicant.
2. The application is supported by the grounds on its face and the affidavit of NIZARALI DHANJI MOHAMED HUDANI. The client avers that the advocate represented him in Nairobi HCCC No. 639 of 2007 (“the suit”), in which he was the defendant. He states that the advocate became aware on 5th July 2013 that the plaintiff had ceased operations. Despite this, the advocate continued to prosecute the counterclaim and incurred substantial costs reflected in items 177 to 459 of the bill of costs, which he now seeks to recover.
3. The client’s position is that the continued prosecution of the counterclaim, despite the advocate’s knowledge of the plaintiff’s dissolution, amounted to negligence and was not in his best interests. He contends that the costs incurred were improper, without reasonable cause, and ultimately fruitless, as there was no realistic prospect of recovery against a dissolved party.
4. The advocate opposed the application through a replying affidavit, arguing that the application is an abuse of court process and is res judicata. He asserts that the issues raised were canvassed in earlier submissions, and that the Court had already directed the bill to proceed to taxation, effectively settling the matter.
Analysis and Determination
5. The main issues for determination are:
a) Whether the application is barred by the doctrine of res judicata;
b) Whether the costs listed in items 177 to 459 of the bill of costs were improperly incurred, without reasonable cause, or rendered fruitless by reason of the advocate’s default or negligence, within the meaning of Rule 61(1) of the ARO.
On Res Judicata:
6. Section 7 of the Civil Procedure Act embodies the principle of res judicata. As reiterated in Independent Electoral & Boundaries Commission V Maina Kiai & 5 Others, [2017] eKLR: “for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms”;
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
7. The Court of Appeal was instructive that for the doctrine of res judicata to apply, each and every one of the requirements set out under Section 7 of the Civil Procedure Act must therefore be satisfied cumulatively. It is not sufficient that some elements are met; the provisions are cast in conjunctive, not disjunctive, terms, meaning that all the conditions must coexist for the bar of res judicata to be effectively invoked.
8. In the present case, although similar concerns were raised in prior submissions, as acknowledged by the advocate, no formal application under Rule 61(1) was made, and no determination was rendered on the specific question of whether the impugned costs were improperly incurred. Submissions, however detailed, do not substitute for a judicial finding. The matter was never substantively adjudicated. Accordingly, I find that the application is not res judicata.
On Rule 61(1) of the ARO :
9. Rule 61(1) of the ARO empowers the court, on its own motion or upon application, to disallow costs that are improperly incurred, incurred without reasonable cause, or rendered fruitless by reason of undue delay, misconduct, or default by the advocate.
10. The purpose of this rule is to protect clients from bearing the financial consequences of their advocate’s dereliction of duty or imprudent conduct. It recognizes that while an advocate is entitled to compensation for services rendered, that entitlement does not extend to work that is negligent, unnecessary, or objectively futile.
11. The client has demonstrated that by 5th July 2013, the advocate was aware that the plaintiff company in the main suit had ceased operations. This is evident from the advocate’s own letter dated 6th July 2013, in which he wrote:
“The Plaintiff's advocate informed the court that the Plaintiff Company is no longer in operation and it would be important to know the Plaintiff's financial solvency so as to know whether we shall be able to execute in the event that we succeed in the counterclaim…”
12. This acknowledgement was followed, just two months later, by Gazette Notice No. 12819 of 6th September 2013, which formally announced the dissolution of the plaintiff company. Despite these developments, the client contends that the advocate continued to incur costs on the counterclaim for several years without offering the client proper advice on the futility or likelihood of recovery. Notably, the advocate has not disproved the assertion that the client was unaware of the 6th July 2013 letter until much later on 11th April 2014 nor has he produced any certificate or evidence of postage to confirm that the correspondence was sent to the client.
13. That said, Rule 61 contemplates a two-stage process. Before the Court may disallow any costs or make a compensatory order, the advocate must be given an opportunity to be heard. In appropriate cases, the matter may also be referred to the taxing officer for inquiry and report under Rule 61(2).
14. In the present case, I am satisfied that sufficient cause has been shown to require the advocate to answer the allegations made. A show cause hearing is therefore necessary to determine, on the merits, whether the impugned costs should be disallowed or refunded.
Disposition
15. Accordingly, the application dated 13th December 2024 is meritorious and succeeds to the extent stated. The following directions hereby issue:
a) The Advocate shall, within fourteen (14) days from the date hereof, show cause by way of a sworn affidavit why the costs listed in items 177 to 459 of the Advocate/Client Bill of Costs dated 19th February 2021 should not be disallowed pursuant to Rule 61(1) of the ARO.
b) The Client shall be at liberty to file and serve a replying affidavit within fourteen (14) days of service of the advocate’s show cause documents.
c) The parties shall thereafter file and exchange skeleton submissions limited to five (5) pages within fourteen (14) days each beginning with the Advocate who may, if necessary, file a supplementary affidavit with their submissions.
d) The costs of the present application shall abide by the outcome of the show cause proceedings.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE