Wakilii

In Re - Messrs. Shapley, Barret, Allin and Company (Miscellaneous Civil Suit No. 9 of 1954)

East African Court of Appeal · [1954] EACA 48 · 1954 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for execution of a taxed bill of costs for non-contentious business, referred to a Judge in chambers by the Deputy Registrar
Decision
Application for execution dismissed; entire proceeding declared a nullity from the outset

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that before a Registrar can tax a bill of costs for non-contentious business, a court order must be obtained under section 67(2) of the Advocates Ordinance, 1949, by formal application through originating notice of motion supported by affidavit. The application must show prior delivery of the bill to the client and expiry of one calendar month thereafter. A bare bill filed in the Registry without such application is insufficient. The taxation conducted without a valid court order was a nullity, as was the subsequent application for execution in the absence of any judgment or decree.

Outcome

Application for execution dismissed; entire proceeding declared a nullity from the outset

Facts

A firm of advocates filed a bill of costs for non-contentious business directly in the Supreme Court Registry without making any application to the Court. The Registry registered it as a miscellaneous civil suit titled "Solicitor & Client Bill of Costs". The Deputy Registrar issued a notice of taxation to the clients, who did not appear. The Deputy Registrar taxed the bill, reducing it from Sh. 2,061 to Sh. 1,985/75. The advocates then applied for execution by attachment and sale of the clients' goods using the form prescribed for execution of decrees. No judgment had been entered and no decree had been drawn up or signed. The Deputy Registrar referred the application to a Judge in chambers, where the advocates argued that the proceeding was in order and that judgment should be entered automatically on the application for execution.

Issues

  1. Whether a bare bill of costs filed in the Registry without a formal application to the Court constitutes a valid proceeding under the Advocates Ordinance, 1949.
  2. Whether the Deputy Registrar had jurisdiction to tax a bill of costs for non-contentious business in the absence of a court order obtained under section 67(2) of the Advocates Ordinance, 1949.
  3. What is the proper procedure for an advocate to obtain an order for taxation of a bill of costs for non-contentious business where no specific procedure is prescribed by rules.
  4. Whether judgment can be entered and a decree drawn up merely upon an application for execution under Order 21, rule 7(2) of the Civil Procedure Rules.
  5. Whether the costs of the invalid filing, taxation, and application for execution can be charged against the clients.

Orders

  • Application for execution refused.
  • Applicants to bear the costs of the application for execution.
  • Applicants to bear all costs resulting from filing the bill of costs in Court from the outset, including the costs of the taxation.

Rules and key headnotes

Advocates' Bills of Costs — Proper Title and Professional Designation
The proper professional designation of lawyers practising in Kenya is "Advocate" and not "Solicitor", and the proper title of any proceeding concerning an advocate's bill is "In the matter of A.B. & Co., Advocates" in terms of section 69(1) of the Advocates Ordinance, 1949.
Advocates' Bills of Costs — Statutory Obligation to Deliver Bill Before Suit
Before instituting a suit to recover an advocate's bill of costs under the common law, there is a statutory obligation to deliver a bill to the client, and the remedy is suspended until after the expiry of one month from the date of such delivery by operation of section 66 of the Advocates Ordinance, 1949.
Advocates' Bills of Costs — Requirement of Court Order for Taxation
Before the Registrar can competently proceed to tax a bill of costs for non-contentious business, an order from the Court must be obtained under section 67(2) of the Advocates Ordinance, 1949, and such order is obtained only on formal application to the Court.
Advocates' Bills of Costs — Procedure for Application for Taxation Order
In the absence of rules made under the Advocates Ordinance, an application for an order to tax a bill of costs for non-contentious business ought to be made by originating notice of motion supported by affidavit which must depose to the prior delivery of the bill of costs to the client and to the expiry of one calendar month thereafter without payment.
Originating Motion — Definition of Civil Suit
An originating notice of motion is competent in terms of Order 50, rule 1 of the Civil Procedure (Revised) Rules, 1948, and falls within the definition of a "civil suit" as defined by section 2 of the Civil Procedure Ordinance, upon which a judgment may follow and a decree may be drawn up and signed.
Execution — Judgment and Decree Required
The Court will not enter judgment and draw up and sign a decree merely upon an application to execute in terms of Order 21, rule 7(2) of the Civil Procedure Rules; a judgment and decree must exist before execution can be granted.
Advocates' Bills of Costs — Costs of Invalid Proceedings
Where a bill of costs is invalidly filed in the Registry without proper application and the subsequent taxation and application for execution are nullities, none of the costs thrown away by the invalid proceedings can be charged against the clients.

Legislation cited (20)

  • Advocates Ordinance, 1949 s.66
  • Advocates Ordinance, 1949 s.67(1)
  • Advocates Ordinance, 1949 s.67(2)
  • Advocates Ordinance, 1949 s.69(1)
  • Advocates Ordinance, 1949 s.69(2)
  • Advocates Ordinance, 1949 s.74
  • Civil Procedure Ordinance s.2
  • Civil Procedure Ordinance s.25(2)
  • Civil Procedure Ordinance s.81(2)(f)(i)
  • Civil Procedure Ordinance s.89
  • Civil Procedure (Revised) Rules, 1948 Order 3
  • Civil Procedure (Revised) Rules, 1948 Order 21 rule 7(2)
  • Civil Procedure (Revised) Rules, 1948 Order 50 rule 1
  • Solicitors Act, 1843 s.37
  • Solicitors Act, 1932 s.65
  • Solicitors Act, 1932 s.66
  • Solicitors Act, 1932 s.67
  • Solicitors Act, 1932 s.68
  • Solicitors Act, 1932 s.69
  • Kenya Colony Order in Council, 1921 Article 4(2)

Cases cited (10)

  • In re Porrett (1891) 2 Ch 433 (CA)
  • Ray v Newton (1913) 1 KB 249 (CA)
  • Brooks v Mason (1789) 1 H Bl 290
  • Blunt v Heslop (1838) 8 Ad & E 577
  • Browne v Black (1912) 1 KB 316
  • Re Hulbert & Crowe (1894) 71 LT 748
  • Mansion House Ltd v Wilkinson (1954) 21 EACA 98
  • Saint Benoist Plantations Ltd v Felix (1954) 21 EACA 105
  • Solamalay v Solamalay (1941) 19 KLR 50
  • In re Meister, Lucius and Bruning Ltd (1914) 31 TLR 28

Full judgment

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In Re - Messrs. Shapley, Barret, Allin and Company (Miscellaneous Civil Suit No. 9 of 1954) [1954] EACA 48 (1 January 1954)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.