Martin Tindi & Co. Advocates v Bimbita Mgalla Dzumba & 46 others [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P.J.O. Otieno
Judgment Date
October 02, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Martin Tindi & Co. Advocates v Bimbita Mgalla Dzumba & 46 others [2020] eKLR case summary. Delve into key legal principles and outcomes impacting this important judgment.

Case Brief: Martin Tindi & Co. Advocates v Bimbita Mgalla Dzumba & 46 others [2020] eKLR

1. Case Information:
- Name of the Case: Martin Tindi & Co. Advocates v. Bimbita Mgalla Dzumba & 46 Others
- Case Number: Misc. Application No. 197 of 2018
- Court: High Court of Kenya at Mombasa
- Date Delivered: October 2, 2020
- Category of Law: Civil
- Judge(s): P.J.O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include:
1. Whether the decree issued on August 9, 2019, should be set aside.
2. Whether the certificate of costs arising from the decree should be set aside ex debito justitiae.
3. The liability of the applicant for legal fees in a representative suit where clients are squatters with no income.

3. Facts of the Case:
The applicant, Martin Tindi & Co. Advocates, represented a group of clients, including Bimbita Mgalla Dzumba, in a representative suit at the Environment and Land Court and the Court of Appeal. The advocate claims that while he acted for the clients, there was no agreement for the individual clients to personally pay legal fees, as they were squatters with limited financial resources. The advocate asserts that a total of Kshs. 475,200 was paid during the representation. The application to set aside the decree was filed by Bimbita Mgalla Dzumba, who acted on her own interests rather than on behalf of all clients, aiming to prevent the sale of a property known as Kwale Kirindini/536.

4. Procedural History:
The application was filed on August 13, 2020, and later amended on August 26, 2020. The advocate opposed the application and submitted a Replying Affidavit on August 21, 2020, affirming the representation and disputing the claims regarding the agreement on fees. The court directed that the matter be canvassed through written submissions. Both parties submitted their arguments, addressing issues related to the liability for costs, the withdrawal of the suit, and the rights associated with representation in a class suit.

5. Analysis:
Rules:
The court considered the Advocates Act, particularly Section 51(2), which governs the taxation of advocates' fees, and the Advocates Remuneration Order, specifically Rule 11 regarding objections to the taxing officer's decisions.

Case Law:
The court cited several cases, including:
- Lapas Ole Sese v. Salatia Ole Narok, Civil Appeal No. 292 of 2001: Highlighted the purpose of Order 1 Rule 8 concerning representative suits.
- Monica Atieno & Others v. Jaramogi Oginga Odinga University of Science and Technology (2018) eKLR: Addressed the implications of withdrawing a suit without proper instructions.
- AFC v. Lagetia Ltd (1985) KLR 705: Established that contracts bind only the parties involved.
- Machira & Co. Advocates v. Arthur K. Magugu & Another (2012) eKLR: Affirmed that the Advocates Remuneration Order is a complete code for disputes regarding advocate fees.

Application:
The court found that the applicant failed to follow the proper procedure for challenging the taxation of costs, as outlined in the Advocates Act. It emphasized that the applicant’s claims regarding the lack of privity of contract were unfounded, given that the applicant and others had instructed the advocate to act on their behalf. The court determined that the applicant was liable for the legal fees incurred during the representation and dismissed the application.

6. Conclusion:
The court ruled against the applicant, dismissing the request to set aside the decree and the certificate of costs. It affirmed that the advocate was entitled to recover fees from the applicant, who had acted as a representative in the suit. The decision underscores the importance of adhering to statutory procedures in disputes involving advocate remuneration.

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

8. Summary:
The High Court of Kenya dismissed the application by Bimbita Mgalla Dzumba and 46 others, affirming the validity of the decree and the advocate's entitlement to fees. The ruling highlights the legal obligations of parties in representative suits and reinforces the procedural requirements for contesting taxation decisions under the Advocates Act. This case serves as a significant reference for similar disputes regarding advocate-client relationships and the enforcement of legal fees.

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