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Remtulla v Esmail (C.C. 55/1934 (Mombasa)) [1937] EACA 205 (1 January 1937)
- Citation
- [1937] EACA 205
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Lucie-Smith, J. (Kenya)
- Case number
- C.C. 55/1934 (Mombasa)
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Lucie-Smith, J. (Kenya)
- Case number
- C.C. 55/1934 (Mombasa)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the phrase 'case cannot be taken' in the Rules of Court No. 2 of 1916 must be interpreted as referring exclusively to situations where the Court itself is unable to proceed with the case, such as when a judge is unavailable or a part-heard case overruns. It does not extend to adjournments sought by parties or their advocates for their own convenience. Therefore, when an advocate attends court on a fixed hearing date and the case is adjourned at the request of a party, the advocate is entitled to reasonable remuneration for the wasted time, as their professional arrangements and opportunity to take other briefs are disrupted. The Registrar's reduction of the claimed fee was incorrect, and the full amount should be allowed.
Court disposition
Application allowed. Registrar's ruling reversed.
Orders
- Registrar to allow Item 27 of the Bill of Costs at Sh. 70.
- Costs of this application to the applicant fixed at Sh. 98.
02
Material facts
Parties
Abdulla Rehmtulla trading as Walji Hirji and Sons
Plaintiff Counsel: RossMavji Esmail
Defendant Counsel: BudhdeoAmounts and remedies
- Bill of Costs Item 27 Allowed: KES 70
- Costs of Application: KES 98
03
Procedural history
Posture
Taxation Application / Application to Reverse Registrar's Taxation Ruling
04
Questions and positions
Legal issues
- 01
Whether the phrase 'case cannot be taken' in the Rules of Court No. 2 of 1916 refers to the inability of the Court itself to take the case or includes adjournments at the request of a party.
- 02
Whether the advocate is entitled to full remuneration for court attendance when adjournment is sought by a party for their own convenience.
Party arguments
- Applicant
- Mr. Ross for the plaintiff argued that the phrase 'case cannot be taken' should be interpreted to refer only to situations where the Court itself is unable to proceed, not where an adjournment is sought by a party for their own or their client's convenience. He contended that advocates should be entitled to reasonable remuneration for wasted time when their arrangements are nullified by such adjournments.
- Respondent
- Budhdeo for the defendant relied on the Registrar's interpretation, suggesting that the reduced fee was appropriate under the circumstances, as the adjournment was due to the defendant's illness and not a failure of the Court to sit.
05
Court’s reasoning
Legal principles
- 01
Rules of Court No. 2 of 1916
The phrase 'case cannot be taken' refers to the inability of the Court itself to take the case, not to adjournments requested by parties for their own convenience.
- 02
Judicial interpretation in this ruling
Advocates are entitled to reasonable remuneration for wasted time when court attendance is nullified by adjournments not caused by the Court's inability to sit.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the phrase 'case cannot be taken' in the Rules of Court No. 2 of 1916 must be interpreted as referring exclusively to situations where the Court itself is unable to proceed with the case, such as when a judge is unavailable or a part-heard case overruns. It does not extend to adjournments sought by parties or their advocates for their own convenience. Therefore, when an advocate attends court on a fixed hearing date and the case is adjourned at the request of a party, the advocate is entitled to reasonable remuneration for the wasted time, as their professional arrangements and opportunity to take other briefs are disrupted. The Registrar's reduction of the claimed fee was incorrect, and the full amount should be allowed.
Obiter and limits
- Advocates must make arrangements to be absent from chambers on fixed hearing dates and cannot take other briefs for that day.
- Unexpected adjournments not caused by the Court's inability to sit should not deprive advocates of reasonable remuneration.
Court disposition
Application allowed. Registrar's ruling reversed.
- Registrar to allow Item 27 of the Bill of Costs at Sh. 70.
- Costs of this application to the applicant fixed at Sh. 98.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
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.
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