Remtulla v Esmail (C.C. 55/1934 (Mombasa)) [1937] EACA 205 (1 January 1937)

### ORIGINAL CIVIL

### Before LUCIE-SMITH, J.

# ABDULLA REHMTULLA trading as "WALJI HIRJI AND SONS", **Plaintiffs**

## $v$ .

# MAVJI ESMAIL, Defendant

#### C. C. 55/1934 (Mombasa)

Advocates' Remuneration and Taxation of Costs-Attendance in Court or Chambers—Date fixed for hearing—Adjournment at request of party—Rules of Court No. 2 of 1916.

(\*See 11 K. L. R. 49)

Held (29-2-36).—That the phrase "case cannot be taken" refers to the inability of the Court itself to take the case, and not to the case where an application is made by one of the advocates concerned for an adjournment to suit his or his client's convenience.

Ross for the plaintiffs.

Budhdeo for the defendant.

RULING.—This is an application to reverse a ruling of the Acting Deputy Registrar in taxation.

The facts so far as pertinent are as follows:—

The clerks of the advocates concerned on 12-6-35 fixed the case for hearing on 19-8-35. On the latter date the case was called and. both advocates appeared. The advocate for the defendant then produced a telegram and asked for an adjournment on the ground of his client's illness. This application was granted and costs of the day were awarded to the plaintiffs in any event.

In his Bill of Costs the plaintiff claimed Sh. 70 being for attendance at Court conducting cause half day. On taxation the Registrar allowed Sh. 30 for "attending in Court on a date fixed by the Court for hearing when case cannot be taken and notice has been given on the previous day that case will not be taken."

It appears to me that the clause under which the Registrar acted was framed to meet a case, for example, where a part-heard case not being finished the day before and being adjourned to the next day, thus ousts a case which had been fixed for that day, or where the Judge is unable to sit for any reason. It seems to me that the phrase "cannot be taken" must be read as referring to the inability of the Court for some reason or other to take the case and not the mere application of one of the advocates concerned for an adjournment to suit his or his client's convenience.

It is obvious that where an advocate takes a brief and knows that he is appearing in Court on a certain day he must make arrangements to be absent from his chambers on that day and cannot take. any other and perhaps better briefs that may come along. Should his arrangements be nullified by reason of an unexpected adjournment, other than an adjournment by reason of the Court being unable to sit or take his case, he must, I think, be entitled to reasonable remuneration for his wasted time.

I think Mr. Ross's argument must prevail and I order that the Registrar allow Item 27 of the Bill of Costs at Sh. 70. Costs of this application to the applicant fixed at Sh. 98.