M S Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P. J. O. Otieno
Judgment Date
September 25, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the M S Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR case summary, highlighting key legal principles and court decisions. Stay informed on significant developments in Kenyan law.

Case Brief: M S Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR

1. Case Information:
- Name of the Case: M S Shariff & Co Advocates vs. Omari Mbwana Zonga
- Case Number: Misc Application No. 47 of 2014
- Court: High Court of Kenya at Mombasa
- Date Delivered: September 25, 2020
- Category of Law: Civil
- Judge(s): P. J. O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issue presented before the court was whether the Certificate of Costs issued on September 5, 2014, and the judgment on costs entered on October 5, 2016, should be set aside due to alleged lack of service of the bill of costs, Notice of Taxation, and Notice of Motion for judgment upon the client, thereby denying him the right to be heard.

3. Facts of the Case:
The applicant, Omari Mbwana Zonga, contended that he was unaware of the proceedings regarding the costs until he was served with warrants of attachment. He argued that he was not the accused in the criminal case represented by the advocate and claimed that the documents purportedly signed by him were forged. The advocate, M S Shariff & Co Advocates, asserted that the client had been duly served and had acknowledged receipt of the documents. The advocate maintained that the client had provided instructions for legal representation in a prior case and had failed to pay the fees due.

4. Procedural History:
The applicant filed a Notice of Motion on March 14, 2017, seeking to set aside the judgment and Certificate of Costs. The advocate responded with a Replying Affidavit asserting proper service and the legitimacy of the fees claimed. The court allowed for written submissions, which were filed by both parties. During a hearing, the advocate indicated a willingness to rely on the submissions without further oral argument, leading to a decision based on the written materials.

5. Analysis:
Rules:
The court considered the principles surrounding setting aside judgments, particularly the necessity of proving lack of service or the existence of a triable issue. The relevant statutes included the Advocates Act, which governs the retainer of advocates and the payment of legal fees.

Case Law:
The court referenced *Mohammed vs. Shoka* (1990) KLR 463 and *Shah vs. Mbogo* (1967) EA 116, which outline the conditions under which a court may set aside a judgment, emphasizing the importance of service and the opportunity for the affected party to be heard.

Application:
The court found that the applicant was duly served with the Bill of Costs and the Notice of Taxation, as confirmed by affidavits of service. The court held that the applicant failed to substantiate his claims of forgery regarding the signatures and did not provide evidence to support his assertion of lack of instructions given to the advocate. Consequently, the court determined that there was no triable issue to warrant setting aside the judgment.

6. Conclusion:
The court dismissed the application to set aside the judgment and Certificate of Costs, affirming that the judgment was regular and based on proper service. The decision underscored the importance of the right to be heard and the necessity for parties to present evidence to support their claims in legal disputes.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The High Court of Kenya upheld the judgment against Omari Mbwana Zonga, affirming the validity of the costs awarded to M S Shariff & Co Advocates. The ruling emphasized the significance of proper service in legal proceedings and reinforced the principle that a party must demonstrate a triable issue to set aside a judgment. The case highlights the complexities involved in disputes over legal fees and the importance of maintaining clear communication and documentation in attorney-client relationships.

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