On the 14 th of August 2025 following a ruling by this court declining to order the Director of Criminal Investigations to investigate whether all the affidavits and annextures filed in this matter are forgeries, the defendant made an oral application urging this court to declare that the suit is spent and that there was no need for judgment to be delivered by this court. The applicant argued that the application was premised on the provisions of Section 60 (a) of the Advocates Act as read with Order 52 Rule 4 of the Civil Procedure Rules .
The applicant argued that the advocates disputes tribunal had delivered a judgement on 10 th February 2025 in DTC Cause No. 112 of 2024 in which the tribunal found the defendant liable to pay to the plaintiff respondent the amount of money which is the subject of the proceedings before this court. The defendant applicant further submitted that there 4 applications filed before the Commercial and Tax Division of this court that were pending determination before Honorable Justice Gikonyo and that those applications shall come up for direction on 26 th January 2026 thus in the applicant’s view this court ought to down its tools in this matter.
The applicant further argued that the judgment of Advocates disputes tribunal can be adopted as a judgment of this court and executed at the instance of the plaintiff respondent thus according to the applicant there was no need for the court to proceed and write a judgement in this matter.
The respondent strenuously opposed the application and argued that this is yet another attempt by applicant to delay judgment in this case and that the move by the applicant is actuated by malice, ill will, and disclosed bad faith.
The respondent contended that what was before the DTC was a dispute relating to matters of professional ethics and that the claim before this court is wider in scope and therefore this court should proceed and determine the suit.
The Advocates Act provides;- 60A.
Hearing of complaints
The powers conferred on the Committee by this section may be exercised on the hearing of—
(a) any application or complaint made to the Committee under this Act by or on behalf of the Council;
(b) any application made to the Committee by the Complaints
Commission under this Act; or
(c) any application or complaint made to the Committee under this Act, by or on behalf of any person.
(2) Where, on the hearing of any application or complaint with respect to an advocate or firm of advocates, it appears to the Committee that the professional services provided by such advocate or firm in connection with any matter in which such advocate or firm of advocates had been instructed by a client were, in any respect, not of the quality that could reasonably have been expected of an advocate, then, subject to subsection (4), the Committee may, if it thinks fit, do one or more of the following things, namely—
(a) determine that the costs to which the advocate or firm of advocates shall be entitled, in respect of those services shall be limited to such amount as may be specified in its determination and by order, direct the advocate to comply, or to secure compliance, with such one or more requirements falling within subsection (3) as appear to it to be necessary in order to give effect to its determination; or
(b) by order direct the advocate or firm of advocates to secure the rectification at their own expense of any error, omission or other deficiency arising in connection with the matter as it may specify; or
( c) by order direct the advocate or firm of advocates to take at their own expense, such other action in the interests of the client as it may specify.
(3) The requirements referred to in paragraph (a) of subsection (2) are— (a) a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of the advocate’s costs in respect of services rendered in connection with the matter;
(b) a requirement to remit the whole or part of the costs; and
(c ) a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.
(4) The Committee shall not exercise any of its powers under this section unless it is satisfied that it would in all circumstances, be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers, the Committee may have regard—
(a) to the existence of any remedy that could reasonably be expected to be available to the client in civil proceeding; or
(b) where proceedings seeking any such remedy have not been commenced by the client, whether it would be reasonable to expect him to commence such proceedings.
(5) Where the Committee has given a direction under subsection (2)(a) in order to give effect to a determination by it under that provision, then—
(a) for the purposes of any taxation of a bill covering those costs the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified by the Committee; and
(b) where a bill covering those costs has not been taxed in accordance with paragraph (a), the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any statutory provision or agreement, be deemed to be liable to pay costs only to the extent of the amount specified by the Committee.
(6) Where a bill covering those costs has been taxed in accordance with subsection (5) (a), the Committee’s direction under subsection (2)(a) shall, so far as relating to those costs, cease to have effect.
(7) For the purposes of this section, “client”, in relation to any matter in which an advocate or firm of advocates has been instructed, includes any person on whose behalf the person who gave the instructions was acting.
The Section does not deal with any suit pending before the High court pitting an advocate against his client thus the matters provided for under Section 60A of the Advocates Act are specific to the jurisdiction of the Advocates disputes tribunal a body subordinate to the High court.
It is therefore incorrect for the applicant to suggest to this court that since the Advocate’s Disciplinary Tribunal has dealt with a dispute involving the same parties the jurisdiction of this court is ousted. Needless to say, a party to a dispute before the tribunal is not precluded from approaching the High court for any relief in exercise of the High court’s original and unlimited jurisdiction under Article 165 (3) (a) of the Constitution of Kenya.
It is important to highlight the fact that the applicant has all along participated in these proceedings knowing too well that there proceedings before the Advocate’s Disciplinary Tribunal and at no time did the applicant moved this court to stay the proceedings or strike them out on account of the matter before the Disciplinary Tribunal. The view of this court is that the applicant has brought up this matter conveniently at this stage to avoid judgment. The action by the applicant is to say the least an after thought and a clearly well calculated move to delay the finalization of this case.
The provisions of [Orders 52, rule 4.] of the Civil Procedure Rules do not bar this court by any stretch of imagination from determining the dispute before the court. The provision is specific to the issue of costs that an advocate may have against his clients.
The applicant has indicated to this court that he is already before the Commercial court litigating on the issue of costs thus this court is not seized of the matter of advocate client bill of costs and accordingly this court shall defer to the jurisdiction of the Commercial court to deal with the question before it.
Further, whereas the applicant acknowledges that the judgement of the Advocate Disciplinary Tribunal is enforceable, the applicant has not attempted to make good any payment of the sums owed to the plaintiff and all he says is that there is a dispute that is pending on the issue of costs. It is also not lost on this court that the defendant applicant elected to file a series of matters before the Commercial and Tax Division knowing too well that there proceedings pending before this court. The action by the applicant smacks off ill will, bad faith , mischief and is a dilatory tactic adopted by the applicant to delay the conclusion of this matter.
It is the view of this court that the action by the applicant of filing multiple applications before the Commercial and Tax Division of this court and is continued applications flies on the face of Article 159 ( 2) (a) , (b) & (d) of the Constitution and must not be entertained.
Accordingly, the oral application to declare this matter as spent fails and this court shall proceed to deliver judgement on 17 th September 2025.
It is ordered.
The applicant argued that the advocates disputes tribunal had delivered a judgement on 10 th February 2025 in DTC Cause No. 112 of 2024 in which the tribunal found the defendant liable to pay to the plaintiff respondent the amount of money which is the subject of the proceedings before this court. The defendant applicant further submitted that there 4 applications filed before the Commercial and Tax Division of this court that were pending determination before Honorable Justice Gikonyo and that those applications shall come up for direction on 26 th January 2026 thus in the applicant’s view this court ought to down its tools in this matter.
The applicant further argued that the judgment of Advocates disputes tribunal can be adopted as a judgment of this court and executed at the instance of the plaintiff respondent thus according to the applicant there was no need for the court to proceed and write a judgement in this matter.
The respondent strenuously opposed the application and argued that this is yet another attempt by applicant to delay judgment in this case and that the move by the applicant is actuated by malice, ill will, and disclosed bad faith.
The respondent contended that what was before the DTC was a dispute relating to matters of professional ethics and that the claim before this court is wider in scope and therefore this court should proceed and determine the suit.
The Advocates Act provides;- 60A.
Hearing of complaints
The powers conferred on the Committee by this section may be exercised on the hearing of—
(a) any application or complaint made to the Committee under this Act by or on behalf of the Council;
(b) any application made to the Committee by the Complaints
Commission under this Act; or
(c) any application or complaint made to the Committee under this Act, by or on behalf of any person.
(2) Where, on the hearing of any application or complaint with respect to an advocate or firm of advocates, it appears to the Committee that the professional services provided by such advocate or firm in connection with any matter in which such advocate or firm of advocates had been instructed by a client were, in any respect, not of the quality that could reasonably have been expected of an advocate, then, subject to subsection (4), the Committee may, if it thinks fit, do one or more of the following things, namely—
(a) determine that the costs to which the advocate or firm of advocates shall be entitled, in respect of those services shall be limited to such amount as may be specified in its determination and by order, direct the advocate to comply, or to secure compliance, with such one or more requirements falling within subsection (3) as appear to it to be necessary in order to give effect to its determination; or
(b) by order direct the advocate or firm of advocates to secure the rectification at their own expense of any error, omission or other deficiency arising in connection with the matter as it may specify; or
( c) by order direct the advocate or firm of advocates to take at their own expense, such other action in the interests of the client as it may specify.
(3) The requirements referred to in paragraph (a) of subsection (2) are— (a) a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of the advocate’s costs in respect of services rendered in connection with the matter;
(b) a requirement to remit the whole or part of the costs; and
(c ) a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.
(4) The Committee shall not exercise any of its powers under this section unless it is satisfied that it would in all circumstances, be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers, the Committee may have regard—
(a) to the existence of any remedy that could reasonably be expected to be available to the client in civil proceeding; or
(b) where proceedings seeking any such remedy have not been commenced by the client, whether it would be reasonable to expect him to commence such proceedings.
(5) Where the Committee has given a direction under subsection (2)(a) in order to give effect to a determination by it under that provision, then—
(a) for the purposes of any taxation of a bill covering those costs the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified by the Committee; and
(b) where a bill covering those costs has not been taxed in accordance with paragraph (a), the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any statutory provision or agreement, be deemed to be liable to pay costs only to the extent of the amount specified by the Committee.
(6) Where a bill covering those costs has been taxed in accordance with subsection (5) (a), the Committee’s direction under subsection (2)(a) shall, so far as relating to those costs, cease to have effect.
(7) For the purposes of this section, “client”, in relation to any matter in which an advocate or firm of advocates has been instructed, includes any person on whose behalf the person who gave the instructions was acting.
The Section does not deal with any suit pending before the High court pitting an advocate against his client thus the matters provided for under Section 60A of the Advocates Act are specific to the jurisdiction of the Advocates disputes tribunal a body subordinate to the High court.
It is therefore incorrect for the applicant to suggest to this court that since the Advocate’s Disciplinary Tribunal has dealt with a dispute involving the same parties the jurisdiction of this court is ousted. Needless to say, a party to a dispute before the tribunal is not precluded from approaching the High court for any relief in exercise of the High court’s original and unlimited jurisdiction under Article 165 (3) (a) of the Constitution of Kenya.
It is important to highlight the fact that the applicant has all along participated in these proceedings knowing too well that there proceedings before the Advocate’s Disciplinary Tribunal and at no time did the applicant moved this court to stay the proceedings or strike them out on account of the matter before the Disciplinary Tribunal. The view of this court is that the applicant has brought up this matter conveniently at this stage to avoid judgment. The action by the applicant is to say the least an after thought and a clearly well calculated move to delay the finalization of this case.
The provisions of [Orders 52, rule 4.] of the Civil Procedure Rules do not bar this court by any stretch of imagination from determining the dispute before the court. The provision is specific to the issue of costs that an advocate may have against his clients.
The applicant has indicated to this court that he is already before the Commercial court litigating on the issue of costs thus this court is not seized of the matter of advocate client bill of costs and accordingly this court shall defer to the jurisdiction of the Commercial court to deal with the question before it.
Further, whereas the applicant acknowledges that the judgement of the Advocate Disciplinary Tribunal is enforceable, the applicant has not attempted to make good any payment of the sums owed to the plaintiff and all he says is that there is a dispute that is pending on the issue of costs. It is also not lost on this court that the defendant applicant elected to file a series of matters before the Commercial and Tax Division knowing too well that there proceedings pending before this court. The action by the applicant smacks off ill will, bad faith , mischief and is a dilatory tactic adopted by the applicant to delay the conclusion of this matter.
It is the view of this court that the action by the applicant of filing multiple applications before the Commercial and Tax Division of this court and is continued applications flies on the face of Article 159 ( 2) (a) , (b) & (d) of the Constitution and must not be entertained.
Accordingly, the oral application to declare this matter as spent fails and this court shall proceed to deliver judgement on 17 th September 2025.
It is ordered.