[2021] KEHC 6448 (KLR)
The court held that the existence of a valid retainer agreement between the Advocates and the Bank precludes the taxation of the Advocates' bill of costs. The Advocates are entitled to pursue their claim for fees under the retainer agreement in the pending civil suit, and the Taxing Officer has no jurisdiction to...
Source-derived case information.
- Citation
- [2021] KEHC 6448 (KLR)
- Parties
- Applicant: Christopher O. Kenyariri t/a Kenyariri & Associates Advocates; Respondent: First Community Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E096 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Bill of Costs
- Outcome
- Application allowed; Advocates' Bill of Costs and all consequent proceedings struck out.
- Judges
- DAS Majanja
- Legal Topics
- Advocate Client Fees, Retainer Agreements, Bill of Costs Taxation, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher O. Kenyariri t/a Kenyariri & Associates Advocates
Applicant
First Community Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Bill of Costs
Legal Issues
- 1 Whether the existence of a retainer agreement precludes taxation of the advocate's bill of costs.
- 2 Whether the bill of costs and related proceedings constitute an abuse of court process in light of the pending civil suit on the retainer agreement.
Ratio Decidendi
The court held that the existence of a valid retainer agreement between the Advocates and the Bank precludes the taxation of the Advocates' bill of costs. The Advocates are entitled to pursue their claim for fees under the retainer agreement in the pending civil suit, and the Taxing Officer has no jurisdiction to tax the bill of costs in such circumstances. The parallel proceedings constituted an abuse of the court's process, and all matters relating to the retainer agreement must be determined in the civil suit. Consequently, the Advocates' bill of costs and all related proceedings were struck out.
Court Disposition
Application allowed; Advocates' Bill of Costs and all consequent proceedings struck out.
Orders
- The Advocates' Bill of Costs dated 9th February 2021 and all consequent proceedings are struck out.
- All matters relating to the Retainer Agreement to be heard and determined in HC Civil Suit No. E145 of 2021.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
MISC. CIVIL APPLICATION NO. E096 OF 2021
BETWEEN
CHRISTOPHER O. KENYARIRI t/a
KENYARIRI & ASSOCIATES ADVOCATES..........ADVOCATES/APPLICANT
AND
FIRST COMMUNITY BANK LIMITED.........................CLIENT/RESPONDENT
RULING
1. Before the court is an application by way of a Notice of Motion dated 12th May 2021 filed by the Applicant/Client (“the Bank”) where it seeks an order that the Respondent’s (“Advocates”) Bill of Costs dated 9th February 2021 be struck out. The Advocates have opposed the application by filing a Notice of Preliminary Objection dated 3rd June 2021 and also filed an application dated 31st May 2021 seeking an order that the Bank’s application be placed before the court in HC Civil Suit No. E145 of 2021 involving the parties.
2. At the center of the dispute is a claim by the Advocates for the balance of legal fees in respect of legal services rendered to the Bank. The parties do not dispute that they entered into a Retainer Agreement dated 15th April 2019 (“the Retainer Agreement”) which the Advocates seek to enforce in HC Civil Suit No. E145 of 2021. The Advocate states that they filed this application in order to tax their Bill of Costs on the basis that the Bank denied the existence of the Retainer Agreement in HC Civil Suit No. E145 of 2021. It contends that the Bank is blowing hot and cold as it now admits the Retainer Agreement in a bid to deny the Advocates their properly earned fees.
3. I am in Agreement with the Advocates that the Bank admits the existence of the Retainer Agreement. It urges the court to determine the dispute based on section 45 as read with section 46 of the Advocates Act (Chapter 16 of the Laws of Kenya) and not through taxation of the Bill of Costs. Section 45(5) of the Advocates Act allows an advocate who is a party to a retainer agreement and who has acted diligently for the client to sue and recover the whole retainer fee should his client default in payment thereof. An Advocates is entitled to the sum agreed under a retainer hence he need not tax his bill of costs unless the agreement so provides (see National Bank of Kenya Limited v Otieno Ragot & Company Advocates KSM CA Civil Appeal No. 36 of 2017 [2020] eKLR). This is the route the Advocates have taken in Civil Suit No. E145 of 2021. It follows therefore, that the instant taxation proceedings are unnecessary and the parties are bound by the terms of the Retainer Agreement and cannot have recourse to the Advocates Remuneration Order. Where there is a Retainer Agreement, a Taxing Officer lacks jurisdiction to tax a Bill of Costs (see Rachuonyo & Rachuonyo Advocate v National Bank of Kenya Limited ML HC Misc. Application No. E250 0F 2019 [2020] eKLR and Omulele & Co. Advocates v Synresins Limited MSA HC Misc. Application No. 27 of 2013 [2013] eKLR).
4. Having the Bill of Costs filed herein and the attendant proceedings running parallel to the suit in HC Civil Suit No. E145 of 2021 is an abuse of the court’s process. All matters relating to the Retainer Agreement must be heard and determined in HC Civil Suit No. E145 of 2021. The effect of this is that the Advocates’ Bill of Costs dated 9th February 2021 and all consequent proceedings are hereby struck out.
5. As both parties are engaged in shadow boxing, there shall be no order as to costs.
DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JUNE 2021.
D.S. MAJANJA
JUDGE
Court Assistant: Mr M. Onyango
Dr Kenyariri instructed by Kenyariri and Associates Advocates for the Advocates.
Mr Issa instructed by Issa and Associates Advocates for the Respondent.