[2017] KEHC 9548 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL AND TAX DIVISION

MISCELLANEOUS CIVIL APPLICATION No 327 of 2014

IN THE MATTER OF THE TAXATION OF COSTS

B E T W E E N:

AMINGA OPIYO & Co ADVOCATES …....…….. APPLICANT/ADVOCATE

VERSUS

ALFRED SAMBUT KIBOI ………………………….RESPONDENT/CLIENT

R U L I N G

1. The Applications before the Court relate to the Taxation of the Bill of Costs for an Advocate Client Bill between the Applicant to the Bill and the Respondent thereto. To avoid confusion that is the terminology adopted in this Ruling .

2. The initial application is brought by the Client and seeks a review of the Taxing Master’s Ruling in this matter delivered on 28th January 2015. The Ruling and taxation awarded the Advocate the sum of KShs.15,370,298. 70. In effect it seeks an order setting aside the Ruling and any consequent Certificate of Taxation. The Application was brought by Chambers Summons and was filed on 25th February 2015. It seeks the following Orders:

“1. Pending hearing and final determination of this reference, there be a stay of execution in respect of the taxed costs awarded to the Respondent/Advocate.

2. The this (sic) Honourable Court do set aside the ruling of Taxing master’s ruling dated 28th January, 2015 awarding the Advocate/Respondent taxed costs amounting to Kshs.15,370,298. 70.

3. That any consequent Certificate of Taxation be vacated and or set aside

4. That the Bill of costs dated 9th July, 2014 be remitted to another taxing master with appropriate directions on and for taxation.

5. That the costs of this application be provided for.”

3. In response the Advocate filed Grounds of Opposition on 27th February 2015. In addition the Advocate has filed an additional application by Chambers Summons under Order 19 Rule 6 and Rule 9 to strike out virtually all the Supporting Affidavit. Apart from noting at this stage that an Affidavit is a statement of evidence, given under oath and not a pleading, I will deal with the merits of that Application below.

4. In essence the substance of the issues between the Parties are that the Client is challenging the Taxation of the Taxing Master and the Advocate is saying that the Client is not entitled to do so. The Challenge to the taxation is set out above but can be helpfully distilled to the following:

a. The Taxing Master erred in principle in not allowing an adjournment;

b. The Taxing Master erred in principle in allowing costs for a period when there was no retainer

c. The Taxing Master misdirected herself and failed to exercise her discretion appropriately arriving at an award that was equivalent to the amount recovered.

d. The Taxing Master misdirected herself in relation to individual items set out in the application

e. The Taxing Master did not give credit for sums of money paid by the Client

f. The Taxing Master misdirected herself by Hearing the Substantive Taxation when the matter was listed for directions only.

5. The Application includes a prayer for stay of execution pending heraring because if the Advocate was to execute the Client would suffer irreparable harm. The Application does not go on to say that the harm could not be compensated for by damages. That aspect of the Application was agreed by the Parties until the hearing but the file was not properly listed on so many occasions following the first directions hearing that there appears to have been a stay of execution in effect. In addition the Taxing Master ordered a stay of execution for 30 days following her Ruling.

6. The Ruling was delivered on 28th January 2015. It is not clear from the Application when the Certified Copy of the Ruling was obtained by the Client. In the circumstances, it is not clear whether or not the Application was filed within the timescales allowed by paragraph 11 of the Advocates Remuneration Order 2009. It provides, Paragraph 11 of the Remuneration Order which provides:

(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing office of the items of taxation to which he objects;

(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within 14 days from the receipt of the reasons to apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection..”

7. The Notice of Objection is dated 2nd February 2015 and filed on 4th February 2015. On 18th February 2015, the Client was still seeking a Certified Copy of the Ruling. In any event, the Application was filed on 25th February 2015. As the Advocate has not taken issue with the timing the Client’s Application is given the benefit of the doubt. The Client was represented by his current Advocates for the taxation.

8. The Client raises the issue of retainer although he expresses it as if the Advocate had billed for periods before he was instructed. The Court has read the Affidavits and Submissions of the Parties on file. What is abundantly clear from the facts before the Court – even though the Client has been selective in what he placed before the Court – is that the Parties had a long standing Advocate Client relationship dating as far back as 2008/09 if not earlier. In the course of that relationship the Advocate acted for the Client in relation to civil criminal and conveyancing matters. The suit the subject of this Taxation was High Court (Nairobi) Civil Case No 280 of 2011. The Bill of Costs was filed on 6th March 2013. It was given a date for Hearing on 24th September 2014. The Notice of Taxation was issued on 14th July 2014. It was served on the Client’s new advocates on 31st July 2014. According to the Court record on 24th September the Advocate acting for the Respondent Client asked for an adjournment because he had not yet received instructions. The Taxing Master ordered the Parties to file written submissions and listed the matter for mention on 2nd December 2014 to confirm compliance. On that date, the Respondent Client had not filed submissions. By this time the Client had notice of the taxation for more than 4 months. The records shows that Counsel holding brief informed the Taxing Mater “Mr Singoei has had difficulties getting instructions from their client. A complaint has been filed against then there have been a hold up in getting Instructions….” . The Taxing Officer on the Application of the Advocate treated the matter as unopposed. That is something she was entitled to do as an exercise of her discretion. In fact, it seems to this Court to be fully consistent with the overriding objective. That limb of the Application is dismissed.

9. The Client then seeks to impress upon the Court that the taxation related to the conveyancing of LR No 36/VII/323 in Eastleigh. That was the subject of an agreement for costs of 15% of the Purchase price. There is no evidence before the Court what the purchase price was. In the circumstances the Client has failed to substantiate his claim that he was overcharged in relation to that arrangement. Notwithstanding the carefully crafted application and supporting documents, it is clear from the documents before the Court that this taxation relates to a different arrangement. In fact the suit relates to the same property and is inextricably linked with the Conveyance. The Letter instructing the Advocates is dated in 2009. The work set out in the Bill of Costs done in 2010 ie before the suit relates to the eviction of trespassers and assisting the client to take back possession and re-institute the conveyance of title back to his name. It is clear from that narrative that it relates to the conveyance and the suit. If it is covered by the 15% arrangement, it is for the Client to bring the evidence and argument before the Taxing Master in a timely fashion. He failed to do so. Then follows the suit.

10. The suit appears to be a claim for two items (1) loss of the property and (2) loss of income. The documents also show that the Valuer was asked to value to suit property which he valued at Kshs 38,000,000 (thirty eight million) or thereabouts. The same Surveyor, Edward W.L. Kakai also valued the Rental Scale of Fees at a Value of Kshs692,700,000/- . That figure is confirmed by the Fee Note that appears at page 21 of the Exhibit. The Fee Note is dated 14th April 2011 and seeks payment of Kshs 100,000/- and is reflected in items 18-20 of the Bill of Costs. The Fee Note at page 26 of the Exhibit shows where the remainder of the KShs. 120,000/ arises. That was the Scale fees for the valuation of the Property. Adding the two fee Notes gives a total of KShs. 220,000/. That is completely consistent with paragraph 5 of the Affidavit of Edward Kakai . It is also consistent with paragraph 7 of that Affidavit. In the circumstances, on the issue of whether or not the Advocates were properly retained, the Taxing Officer found they were and she was fully entitled to do so.

11. The next challenge is on quantum. It is said that the Taxing Master misdirected herself in using the figure of Kshs 692,700,000/=. That figure appears in the Fee Note of Homeland Valuers. Even if that Fee Note is a forgery, the Taxing Master had access to and according to her Ruling did consider the parent file in accepting that figure. The Client has not filed any pleadings to show that in fact the figure is no what was claimed as special damages. It is a very basic principle of evidence that he who asserts must prove (Evidence Act Section 107). In the circumstances there is no evidence before the Court that the figure the Taxing Master took from the parent file is not the correct figure. In the circumstances, that limb of the reference is dismissed.

12. The Advocate filed Grounds of Opposition and an Application seeking to strike out the Supporting Affidavit. In the circumstances, both those Applications are misconceived. Firstly, it seems illogical to object to provision of security which would ultimately be to the benefit of the receiving party. In any event the Advocates conceded a stay and did so without security. In relation to striking out a Supporting Affidavit, again, it is not clear what the Advocates hope to achieve from such an Application. The fact was that the Client did not attend or properly Instruct Advocates in the Taxation. It was unopposed. Any evidence now adduced would be the subject of a new taxation – if that were to be ordered. Points on relevance, admissibility and indeed veracity would be taken at that stage. In fact virtually every document now being exhibited was in the knowledge and possession of the Client on 24th September 2014 and also 2nd December 2014. He chose not to place them before the Court. Doing so at this late stage reflects on whether or not he comes to Court with cleans hands. It could also be interpreted as simply a delaying exercise. In effect that is what it turned out to be.

13. For the reasons set out above. Both Applications are dismissed. The Taxation to stand. Each Party to pay its own costs.

Order accordingly,

FARAH S. M. AMIN

JUDGE

Dated 3rd May 2017

Signed and Delivered on the 3rd day of November 2017.

In the Presence of:

Court Assistant: Patrick Mwangi

Advocate: Mr Murara HB Mr Opiyo

Client: Ms Wahonja HB Mr Sigoei