Jamaldin Abdulkarim Varvani v Diamond Industries Limited & Narodhco (K) Limited [2014] KEHC 6908 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

BANKRUPTCY CASE NO. 4 OF 2010

JAMALDIN ABDULKARIM VARVANI …………….……….PETITIONER

V E R S U S

DIAMOND INDUSTRIES LIMITED …………………. 1ST RESPONDENT

NARODHCO (K) LIMITED ………….…..………….. 2ND RESPONDENT

RULING

Section 9 of The Advocates Act Cap 16 defines who is qualified to practice as an Advocate.  That Section provides as follows-

“9.  Subject to this Act, no person shall be qualified to act as an advocate unless-

(a)  he has been admitted as an advocate; and

(b)  his name is for the time being on the Roll; and

(c)  he has in force a practicing Certificate;

and for the purpose of this Act a practicing certificate shall be deemed not to be in force at any time while he is suspended by virtue of Section 27 or by an order under Section 60(4).”

In this case the 1st Creditor, namely Diamond Industries Ltd were previously represented by the firm of J. K. Mwalimu & Co. Advocates.  The 1st Creditor, by this Court’s Ruling of 1st July 2011 in respect of 1st Creditors application dated 14th October 2010 was awarded costs of the Petition and of the application.

A Bill of Costs dated 24th October 2011 was filed by 1st Creditor’s Advocates.  That Bill was taxed on 12th April 2013 at Kshs. 60,683/-.

1st Creditor obtained an order of the Court on 14th August 2013 to act in person.

On 6th November 2013 leave was granted to the 1st Creditor to file a reference out of time to the taxation of 12th April 2013.

1st Creditor, now acting in person filed Chamber Summons dated 14th October 2013 being a reference against that taxation.  I began by setting out Section 9 of Cap 16 which Section provides who can practice as an Advocate.  The purpose of setting out Section 9 is because the Bill of Costs which is the subject of 1st Creditor’s application relates to the remuneration of an Advocate.  Cap 16 specifically forbids an Advocate to share his profits in respect of professional business with any one not being an Advocate.  That Section is in the following terms-

“37.  Any Advocate who agrees to share his profits in respect of any professional business, whether contentious or non-contentious, with any person not being an advocate or other duly qualified legal practitioner (by whatever name called) shall be guilty of an offence.

Provided that this section shall not apply to the payment of any bonus to any of his employees by an advocate, being a bonus based or calculated on the advocate’s total earnings or profits in respect of any period.”

It follows that any item in the Bill of Costs which relates to attendances or legal work carried by 1st Creditor’s previous Advocates cannot be shared with the 1st Creditor who now is acting in person.  The only items that 1st Creditor would be entitled to receive is disbursement of the fees paid to Court, that is items 33 to 40 of the Bill of Costs.

The Debtor by his affidavit sworn on 17th September 2013 stated that after taxation on 12th April 2013 the taxed costs were paid in full to the 1st Creditor’s then Advocate.  In that paragraph the Debtor stated-

“That further the Court records show that the Applicant (1st Creditor) was ably represented by Counsel and so there is no just reason to re-open these proceedings after the amount that was taxed has even been paid in full.”

1st Creditor did not controvert that deposition and accordingly 1st Creditor is not entitled to even claim disbursements since the same was paid to its former Advocate.

It follows for the above reasons that the Chamber Summons dated 14th November 2013 is without merit and is dismissed with no orders as to costs.

Ruling by:

MARY KASANGO

JUDGE

DATED  and  DELIVERED  at  MOMBASA   this   27TH   day    of    FEBRUARY,   2014.

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JUDGE