1. For determination is the Notice of Preliminary Objection dated 22nd February 2024. which raises the issue of this Court's jurisdiction to hear and determine the matter before it. I have carefully considered the submissions by counsel from both sides.
2. There is no dispute that the subject of the matter of the suit is unpaid legal fees amounting to Kshs. 1,800,000/=, claimed by the advocate from the client. The client contends that under the Civil Procedure Act, the court of the lowest jurisdiction is the Magistrates Court and, therefore, this matter ought to be heard there. The client also relies on the Magistrates Court Act to support this position.
3. Conversely, the advocate argues that the dispute arises from an advocate-client relationship and, as such, the relevant legislation (the Advocates Act) recognizes the High Court as the appropriate forum. While I agree with the advocate that Section 2 of the Advocates Act defines “court” as the High Court, this definition applies only where it is relevant.
4. In the present case, the operative provision is Section 48 of the Advocates Act, which governs actions for the recovery of legal fees. Section 48(2) is explicit in stating that, subject to subsection (1), a suit for the recovery of an advocate’s costs may be brought in any court of competent jurisdiction.
5. This aligns with Section 11 of the Civil Procedure Act, which stipulates that every suit should be instituted in the court of the lowest grade competent to try it. The rationale for this principle is to preserve the litigant’s right to appeal to a higher court, where necessary.
6. I am further guided by Section 18(1) of the Civil Procedure Act, which grants this Court wide discretion to withdraw and transfer cases from one subordinate court to another, from a subordinate court to itself, or vice versa. Given that the value of the subject matter in this case falls below Kshs. 20 million, the pecuniary jurisdictional limit of the Chief Magistrate’s Court, it follows that this matter ought to be heard and determined by that court.
7. To ensure that the applicant is not prejudiced and in the interest of justice, this Court will exercise its discretion accordingly.
Disposition
8. Consequently, the Preliminary Objection is upheld. This suit is hereby transferred to the Chief Magistrates Court at Milimani Commercial Court, Nairobi, for hearing and determination. The plaintiff shall ensure that the matter is mentioned before the Chief Magistrate for allocation and further directions within 60 days from today. Costs shall abide the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 4TH DAY OF DECEMBER, 2024.
F. MUGAMBI
JUDGE
2. There is no dispute that the subject of the matter of the suit is unpaid legal fees amounting to Kshs. 1,800,000/=, claimed by the advocate from the client. The client contends that under the Civil Procedure Act, the court of the lowest jurisdiction is the Magistrates Court and, therefore, this matter ought to be heard there. The client also relies on the Magistrates Court Act to support this position.
3. Conversely, the advocate argues that the dispute arises from an advocate-client relationship and, as such, the relevant legislation (the Advocates Act) recognizes the High Court as the appropriate forum. While I agree with the advocate that Section 2 of the Advocates Act defines “court” as the High Court, this definition applies only where it is relevant.
4. In the present case, the operative provision is Section 48 of the Advocates Act, which governs actions for the recovery of legal fees. Section 48(2) is explicit in stating that, subject to subsection (1), a suit for the recovery of an advocate’s costs may be brought in any court of competent jurisdiction.
5. This aligns with Section 11 of the Civil Procedure Act, which stipulates that every suit should be instituted in the court of the lowest grade competent to try it. The rationale for this principle is to preserve the litigant’s right to appeal to a higher court, where necessary.
6. I am further guided by Section 18(1) of the Civil Procedure Act, which grants this Court wide discretion to withdraw and transfer cases from one subordinate court to another, from a subordinate court to itself, or vice versa. Given that the value of the subject matter in this case falls below Kshs. 20 million, the pecuniary jurisdictional limit of the Chief Magistrate’s Court, it follows that this matter ought to be heard and determined by that court.
7. To ensure that the applicant is not prejudiced and in the interest of justice, this Court will exercise its discretion accordingly.
Disposition
8. Consequently, the Preliminary Objection is upheld. This suit is hereby transferred to the Chief Magistrates Court at Milimani Commercial Court, Nairobi, for hearing and determination. The plaintiff shall ensure that the matter is mentioned before the Chief Magistrate for allocation and further directions within 60 days from today. Costs shall abide the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 4TH DAY OF DECEMBER, 2024.
F. MUGAMBI
JUDGE