[2023] KEHC 26275 (KLR)

Billy Amendi & Company Advocates v EM ((Suing as the Mother and Next Friend of HR & YN)) (Civil Miscellaneous Application 451 of 2018) [2023] KEHC 26275 (KLR) (Civ) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26275 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application 451 of 2018

AN Ongeri, J

December 7, 2023

Between

Billy Amendi & Company Advocates

Applicant

and

EM

Respondent

(Suing as the Mother and Next Friend of HR & YN)

Ruling

1. The application coming for consideration in this ruling is the one dated 17/3/2020 amended on 20/6/2022 brought under Rule 11(1) (2) and (4) of the Advocates Act seeking the following orders;i.That the honourable court be pleased to enlarge time for filing of this reference as the taxing master has not to date responded to the objection dated 17th March 2020 filed to her decision dated 5th March 2020 in accordance with Rule 11(1) of the Advocates Remuneration Order.ii.That the honourable court be pleased to declare that the honourable Taxing officer has failed to issue reasons or has not good reasons for taxation that was delivered on the 5th March 2020 as required by the objection dated 17th March 2020 consequently fourteen days (14 days) from the date of filing have lapsed.iii.That this reference filed after the fourteen days from 17th March 2020 be deemed to have been duly filed in time.iv.That the decision/ruling of the Taxing officer (Hon. Mbasyo (Mrs.) Deputy Registrar) delivered on the 5th March 2020 in respect of the Applicants Advocate-client Bill of costs dated 13th September 2018 be set aside in the following items of the Bill, that is to say; 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 and the Gross Total Tabulation in the Bill of costs dated 13th September 2018. v.That the honourable court be pleased to set aside the ruling/decision of the taxation of the Deputy Registrar given on the 5th March 2020 on the applicants Bill of Costs dated 13th September 2018. vi.That the honourable court be pleased to remit the Bill of Costs dated 13th September 2018 before a different taxing officer in its entirety.vii.That in the alternative to prayer 5 hereof, the honourable court be pleased to remit the Bill of Costs dated 13th September 2018 with appropriate directions.viii.That costs of the application be provided for.

2. The application is based on the grounds on the face of it which are as follows;i.That the applicant objects to the taxing masters decision to award on the lower scale items:11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 and 55 of the Bill of costs 13th September 2018. ii.That the applicant objects the decision of the taxing master to leave out itemized entries from item 1 to item 10 of the Bill of costs dated 13th September 2018. iii.That the applicant objects why the applicant’s submissions dated 21st February were not considered.iv.That the applicant objects why the taxation was skewed in favour of the client/respondentv.That the applicant objects why the costs awarded were inordinately low.

3. The application is supported by the affidavit of Bill Amendi in which he deposed that he filed his advocate-client bill of cost dated 8/8/2018 for taxation. The said bill of costs was taxed by the taxing master Hon. Mbasyo vide a ruling delivered on 5/3/2020. On 17/3/2020 he filed a notice of objection but the filing master failed to respond.

4. He was aggrieved by the ruling and has preferred an appeal. There was however an error on the face of the application, being miscellaneous application No. 481 of 2018 instead of Miscellaneous Application No. 451 of 2018 which error has been resolved.

5. The client EM opposed the application dated 20/6/2022 and filed a replying affidavit dated 3/11/2022 in which she deposed that the taxing master considered all the issues that had been raised by the applicant before arriving at a decision. That failure to file submissions on time despite having been given enough time to do so cannot in the circumstances be considered as an error apparent on the record.

6. He deponed that the client has failed to demonstrate that even if the submissions were on record as at the time of the ruling dated 5/3/2020 it will substantially change the decision and reasoning of court. there exists nothing on the face of the record evidencing filing of the alleged submissions as directed by court. the application herein is thus misconceived, bad in law and tainted with false statements meant to deny the client fair justice.

7. The parties filed written submissions in the application as follows; the applicant submitted that the applicant having carried out instructions of the client as instructed and the client being dissatisfied and or disputing the fees chared at 30% of the claim awarded which is lawful, reasonable and fair, then the court has power according to the Advocates Remuneration Order through the taxing officer and determine the fees due to be paid to the advocate.

8. The taxing officer erred in law and fact by subjecting the advocate-client bill of costs dated 13/9/2018 for the case filed in 2017 and whose judgement was delivered in 2018 by relying on the 2014 Advocates Remuneration Order instead of the revised edition 2017 which was applicable in the case herein. Further the taxing officer taxed off items 13, 14, 27 for the reasons that they do not lie under schedule 7, contrary to the legal principle of alternative method of assessment where an advocate can resort to an item which is not otherwise prescribed as schedule 5 of Chapter 16 of the Advocates Remuneration Order.

9. The applicant argued that having ben aggrieved by the adverse decision of the Taxing Officer, timeously filed a notice of objection dated 17/3/2020 under certificate of urgency, requesting for the decision to be communicated and further a chamber summons application dated 17/3/2020 filed on 27/8/2020. However, following the Covid 19 pandemic the country was palced under lock down and court operations were halted thereby occasioning delays in prosecution of matters pending in court.

10. Upon resumption, the applicant followed up on the pending reference when it was noted that there was an error apparent on the face of the application being Misc. Application No. 481 of 2018 instead of Misc. Application No. 451 of 2018 which was an error resolved as per the Order delivered by Hon. D Chepkwony on 2/6/2022. Since then, the applicant has always been ready to prosecute the application.

11. The respondent submitted that the delay in filing the application was more than two years and thus inordinate. The Applicant was engaged by the Client to represent her in Milimani Commercial Court Civil Suit No. 520 of 2017. The said suit was finalized and a judgement delivered on 20/7/2018. The Insurance Company paid the total decretal sum to the tune of Ksh 1,246,511. 00 to the Advocate on 6/8/2018. The Advocate agreed to be paid 30% of the total decretal sum. To date, more than four years from the date of settlement of the claim, the Applicant continues to unfairly and unlawfully hold onto the decretal sum despite demands for release.

12. The Respondent filed a complaint against the Advocate at the Advocates Complaint Commission and the same is yet to progress to its logical conclusion since the Advocate uses this reference to stay any further progress at the commission. The inescapable conclusion is that the Advocate is using this Honourable Court to protect him from releasing the money to her and further protect himself against any adverse action by the Advocates Complaint commission.

13. The respondent submitted that the Taxing Master exercised her discretion judiciously and as such, the Court should not disturb the Ruling. The Applicant has not demonstrated any error of principle on the part of the taxing master and in the circumstances, the Ruling of the taxing master should not be set aside and neither should it be remitted for fresh taxation.

14. The issues for determination in this application are as follows;i.Whether the advocate should be granted an extension of time to file the reference.ii.Whether the bill of costs dated 5/3/2020 was drawn to scale.

15. On the issue as to whether the advocate should be granted time to file the reference, I find that the advocate’s contention was that he filed the bill timeously on 17/3/2020 but there was an error on the application which was indicated as Miscellaneous Application no. 481 of 2018 instead of Miscellaneous Application no. 451of 2018.

16. The advocate further stated the covid 19 lockdown also delayed the disposal of the application.

17. I find that there is good reason to enable the advocate to prosecute this reference.

18. Having allowed the Applicant to proceed with the reference out of time, I now consider the issue as to whether the bill of costs dated 5/3/2020 was drawn to scale.

19. I have considered the bill of costs item by item and I find that the Taxing Master strictly followed the Advocates Remuneration Order in taxing the bill.

20. The reference has no merit and the same is dismissed with costs to the clients.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. A. N. ONGERIJUDGE