[2022] KEHC 545 (KLR)

Corporate Insurance Company Ltd v Advocates (Miscellaneous Application 033 of 2020) [2022] KEHC 545 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 545 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application 033 of 2020

GV Odunga, J

June 7, 2022

Between

Corporate Insurance Company Ltd

Applicant

and

Kang'Ethe & Mola Advocates

Respondent

Ruling

1. Before me is a Motion dated 2nd March, 2021 taken out by the Client/Applicant herein and expressed to be brought under Section 45(6) Advocates Act, Order 51 Rule 1 and Order 52 Rule 3 of the Civil Procedure Rules in which they are seeking the following orders:1. Thatthis Application be certified urgent and heard exparte in the first instance.2. Thatpending the hearing and determination of this Application, the Honourable Court may be pleased to order a stay of the taxation of the Bill of Costs, any further proceedings and/or consequential orders in this matter.3. Thatthe Advocate/Client Bill of Costs dated 28th October, 2020 be struck out.4. That costs of this Application be awarded to the Applicant.**

2. The application was supported by an affidavit sworn by Linda Olweny an Advocate of the High Court of Kenya and Practicing as the legal officer of Corporate Insurance Company Limited, the Client/Applicant in this matter.

3. According to the deponent, the Applicant/Client engaged the Respondent/Advocate to represent it in Machakos CMCC No. 657 of 2012 on 29th September, 2015 and that the Applicant/Client satisfied all fee notes supplied to it by the Advocate/Respondent for services it had rendered to it in the aforementioned matter amounting to Kshs. 160,271. 78.

4. According to the deponent, despite having received the aforementioned payment in full settlement of its legal fees, the Respondent/Advocate served the Applicant/Client with the Bill of Costs in question on 8th January, 2021. It was the Client’s position that upon settlement of the final fee note, an Advocate is estopped from filing and Advocate/Client Bill of Costs hence the Application is misconceived, bad in law and an abuse of the court process.

5. The Client’s therefore prayed that this application be allowed and that the Bill of Costs in this matter be struck out and with costs to the Applicant.

6. The Client attached the copies of the said final invoice received from the Respondent and the payment receipts therefrom.

7. In response to the Application, the Advocate/Respondent relied on an affidavit sworn by Paul Gacheru, an Advocate of the High Court of Kenya and Senior Associate of the firm of Kangethe & Mola Advocates, the Applicant herein. According to him, this court has no jurisdiction to grant the orders sought as it is not seized of the taxation itself and there being no appeal or reference as provided for by paragraphs 11(1) and 12 of the Advocates Remuneration Order and the taxation not being a suit filed in the High Court for recovery of costs.

8. It was his position that from the supporting affidavit, there is no dispute on the retainer and that the Application is an afterthought intended to delay taxation having been filed after an inexcusable and inordinate delay of more than two months after receipt of the Bill of Costs and with no attempt to explain the reason for the inordinate delay.

9. It was averred that the Respondent issued the Applicant with a fee note on 21st February, 2020 but the Respondent failed to settle the fee note despite many reminders as a result of which the Respondent on 24th April, 2020, sent a demand on the outstanding fees and notice of taxation expressly informing the Respondent that failure to settle the fee note within 7 days from the date of the letter, the Respondent would proceed to file a bill of costs under schedule 5 of the Advocates Remuneration Order, 2014.

10. According to the deponent, it was an express term of the said demand and notice of taxation that if the matter proceeded to taxation, the Respondent would no longer be liable to accept Kshs. 160, 271. 78 in payment thereof and that the unpaid fees would be attracting interest at 14% legally allowed under paragraph 7 of the Advocates Remuneration Order, until its full settlement.

11. It was deposed that upon the Applicant’s failure to pay the fees within the timelines set out in the demand, the Respondent filed the Bill of costs on 17th November, 2020 and served the Applicant with the Bill of Costs and the submissions on 8th January, 2021. However, in an attempt to steal a march on Respondent, the Applicant purported to pay the legal fees vide a cheque number 001192 received on the said 8th January, 2021. In the Respondent’s view, it is dishonest on the part of Applicant to deliberately mislead this court that it settled the fee note on 21st December, 2020 while the letter forwarding the cheque is dated 6th January, 2021 and was received on 8th January, 2021 almost two months after filing of the Bill of Costs. To the deponent, in view of the above dishonesty, the Applicant, does not deserve the equitable remedies sought having come to court with unclean hands and hoping the court will overlook such an important issue. This is so because the Applicant delivered its cheque to the Respondent on 8th January, 2021, almost one (1) year after receiving the fee note and more than Eight (8) months after receiving the demand and notice of taxation and without settling interest that had legally accrued and specifically demanded and which is yet to be fully settled to date and as such the fees owed to the Respondent together with interest remains unsettled.

12. It was deposed on a without prejudice to the above that the total amount due as at 8th January, 2021 when the Respondent received the Applicant’s cheque was Kshs. 180,839/= and the Applicant therefore failed to settle the fees in full and interest continue to accrue.

13. The deponent insisted that the Respondent was within its rights to proceed to file its bill of cost having not received fees due in full and final settlement. According to the deponent, the Applicant ought to present its evidence on payment before the taxing officer who will take into account whatever monies paid to the Respondent and credit the same while taxing the bill. It was contended that the Applicant has not proved the substantial loss that it stands to suffer if the matter proceeds to taxation and that the Applicant has recourse to file a reference to the High Court once all matters in issue are ventilated and Deputy Registrar makes her determination.

14. It was therefore deposed that the Application is defective, bad in law, abuse of the court process, frivolous, without merit and with no legal basis and the same should be dismissed with costs.

Applicant’s Submissions 15. On behalf of the Client/Applicant, it was submitted that the powers and duties of the Taxing Master are spelt out in the Advocate’s Remuneration Order as well as various case law, and determination of an Application filed under Section 45(6) of the Advocates Act is not within the Jurisdiction of the Taxing Master.

16. It was therefore submitted that this Court is clothed with the jurisdiction to hear and determine the Application before it based on the case of Abincha & Co Advocates v Trident Insurance Co Ltd[2013] eKLR.

17. Based on the foregoing, it was submitted that this application is rightly before this court for a determination on the critical matter of whether there are any costs due to the Advocate/Respondent to be taxed.

18. According to the Client, upon conclusion of the matter, the Advocate/Respondent wrote to the Client/Applicant forwarding the Final Fee Note for payment as the final fees payable in the matter. Upon receipt of the final Fee Note, the Client/Applicant drew a cheque in favour of the Advocate/Respondent under the understanding that the amounts therein were the final fees payable in the matter. The Court was urged to take note of the fact that the said Advocate/Client Bill of Costs was allegedly filed on 17th November 2020 but was however not served on the Client/ Applicant till after the Applicant/ Client delivered the forwarding letter and that at the time of processing and approving payment in December, 2020, the Client/ Applicant had no knowledge whatsoever of the present Bill filed. It was submitted that the Bill of Costs was served upon the Client/Applicant on 8th January 2021, after the Advocate/Respondent was served with the letter forwarding the cheque for payments.

19. It is apparent that the Advocate/Respondent is seeking to unjustly enrich themselves as the final fees due to them has already been paid. The Fee Note was written final fee note on the face of it and as such the Applicant construed it to be the final payment for works done.

20. On the strength of the final Fee Note, the Client/Applicant made payments to the Advocate/Respondent on the 21st December 2020. The Advocate/Respondent in their Replying Affidavit have not denied being in receipt of the said funds. The Advocate/ Respondent was therefore fully paid and is estopped from seeking further fees or monies from the Client/ Applicant. According to the Applicant, this is by virtue of their conduct in accepting the monies and estoppel by waiver by opting to agree on the final fees payable. It is trite law that waiver is an intentional relinquishment or abandonment of a known right or privilege. Reliance was placed on the case ofSerah Meri Mwobi v John Kimani Moroge[2013] eKLR where the court explored at some length the issues of waiver, estoppel, and acquiescence where it held as follows:“The doctrine of waiver operates to deny a party his right on the basis that he had accepted to forego the same rights having known of their existence. The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. See Seascapes Limited v Development Finance Company of Kenya Limited,[2009] eKLR.”

21. The Court was urged to be guided by Section 120 of the Evidence Act, and based on the above case law and provisions of the law, it was submitted that it is evident that the Advocate/ Respondent waived their claim of further fees by writing a Final Fee Note and thus instructing the Client/ Applicant that final fees in the matter was as per their Final Fee Note. It was therefore submitted that the Advocate/Respondent, by their conduct, waived their rights to claim further fees from the Client/Applicant and are therefore estopped by deed from filing a bill of costs. Reference was made to the case of Sifa International v Board of Trustees NSSF [2018] eKLR.

22. It was submitted that it would be unjust and inequitable in these circumstances, to allow the Advocate/ Respondent to revert to the previous legal relationship with the Client/Applicant before the Final Fee Note was issued and file a bill of costs as though their fee note is unsettled. Unless fresh instructions have been issued by the Client/Applicant in furtherance of the same matter, their legal relationship is deemed to have ceased the moment the Final Fee Note was honoured by the Client/ Applicant.

23. According to the Applicant, it is trite law that where a Final fee note is issued to the client, the same amounts to an agreement for purposes of Section 45(6) of the Advocates Act and the Applicant cited Abincha & Co Advocates v Trident Insurance Co Ltd [2013] eKLR and Corporate Insurance Company Limited v Kang’ethe and Mola Advocates[2021] eKLR.

24. In any event, it was submitted, the only amounts, if any, that the Advocate/Respondent can claim is interest for period the Fee Note was unpaid. However, it is common knowledge, and this Court ought to take note and consider that the period which the Final Fee Note was issued and the Demand letter drawn for settlement of the Advocate/ Client’s fees and indeed the entire period relevant to these proceedings, was at the heights of a global pandemic, when corporates had a go slow in business having scaled down the number of employees in offices and taking caution to reduce physical contact. It is therefore expected that business would not flow as usual, especially taking note that all transactions between parties involved physical contact. It therefore is not absurd that there were delays in making payment.

25. It was therefore contended that there existed an agreement for fees between the Advocate and the Client in this suit and for this reason, the Advocate is barred under Section 45(6) of the Advocates Act from pursuing any other or further fees other than that agreed therein through taxation. As such, the Bill of Cost herein ought to be struck out. It remains that the only claim that the Advocates herein may have is a contractual claim on interest for delayed payment.

26. As for costs, it was submitted that the basic rule on attribution of costs is that costs follow the event. It is well recognized that the principal costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case as was held in Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd. It was the Applicant’s view that it is in the interests of justice and fairness that the Advocate/Respondent's Client Bill of Costs be dismissed with costs to the Client/Applicant as it lacks merit and the Applicant’s application dated 2nd March 2021 be allowed with costs.

Respondent’s Submissions 27. As for the Advocate/Respondent, it was submitted that the Applicant has purported to submit on new issues of fact particularly on service of the letter forwarding their cheque and the Bill of Costs. These facts were clearly not pleaded in the Application or in the supporting affidavit and it was noted that the Applicant did not deem it fit to swear a further affidavit on the issue to reply to the averments made by the Respondent. It was further noted that though the Applicant has purported to explain the delay in settling of the Respondent’s fee note due to going slow by corporates due to global pandemic, this was equally not raised in the Application or Replying Affidavit which would have given the Respondent a chance to bring out some important and material facts before this court in response thereof in additional to exercising its right to cross examine the deponent on the contents thereof.

28. In the circumstances, the Court was urged to find that a party is bound by his pleadings and in that aspect not to consider any part of submissions by the Applicant on issues of fact not initially pleaded. In saying so, the Respondents cited Gandy v Caspair [1956] EACA 139, Milimani HCCC 237 of 2019 (Formerly HCCC No. 484 of 2013Jane Nyokabi Githiri (Suing as the administrator of the estate of Stephen Githiri Babu) v Fusion Capital & 2 others (Unreported) and Downer Connect Property Limited v McConnell Dowell Constructors (Aust) Property Ltd [2008] VSC 77 [1-4].

29. According to the Respondent to construe the phrase “Final Fee Note” in the circumstances of this case to amount to an unequivocal statement of the exact fee that the client is bound to pay would be a misapprehension of the law for the following reasons. In this regard the Respondent cited Section 45 of the Advocates Act Cap 16 of the Law of Kenya and submitted that the above provision is to the effect that a valid and binding agreement must be in writing and signed by the client or his agent duly authorized in that behalf. In this case, it was submitted, the fee note relied on does not meet the threshold of a validly and binding agreement as it was not signed by the Respondent or its agent and thus cannot bar the Respondent from taxing its costs.

30. In so saying, the Respondent was guided by the case of Peris Pesi Tobiko, Independent Electoral and Boundary Commission & Returning Officer Kajiado East Constituency [2017] eKLR.

31. In the Applicant’s submissions this case is distinguishable from the case of Corporate Insurance Company Limited v Kangethe Mola Advocates [2021] eKLR in which the Bill of Costs dated 11th November, 2020 was filed on 16th November, 2020 after the fees had been settled on 6th November 2020 unlike in the matter herein where the Bill of Costs was filed before any payment was received.

32. It was further submitted that equally important, the Applicant failed to disclose receipt of the Applicant’s demand letter and Notice of intention to tax dated 24th April, 2020 clearly requiring the fees to be paid within 7 days’ failure to which the Respondent would proceed to tax and would not be liable to accept payment based on the fee note. The Applicant’s failure to disclose the existence of the said letter is deliberate to mislead the court by way of misrepresentation of material facts.

33. The Court was therefore urged to find that if at all there was an agreement between the parties based on the principles of contract of offer, acceptance and consideration, then the documents that formed the basis of the contract between the parties were the Fee Note dated 21st February, 2020; and the demand letter and Notice of Intention to Tax dated 24th April, 2020. Accordingly, the Applicant was in breach of the Agreement between the parties and specifically the Demand letter and Notice of Intention to Tax dated 24th April, 2020 particularly the express term that unless Kshs. 160, 271. 78 was received within the 7 days of the letter, the Respondent would proceed to prepare a bill of costs without making further reference to the Applicant and that if the matter proceeded to taxation, the Respondent would no longer be liable to accept Kshs. 160, 271. 78 in payment thereof.

34. The Court was therefore urged to find that the Respondent rescinded the agreement by the simple act of filing the Bill of Costs pursuant to the terms of the Demand Letter when the Applicant failed to heed the demand and was not under any obligation to notify the Applicant thereof.

35. Accordingly, the Court was urged to find that the Respondent is not estopped from taxing its costs in light of the fact there was no valid agreement as stipulated by 45 of the Advocates Act Cap 16 of the Law of Kenya.

36. On jurisdiction, it was submitted that having submitted that there was no valid agreement between the parties to bar the Respondent from taxing its costs, this court the lacks jurisdiction to strike out the Bill or award the prayers sought. This is due to the fact that the jurisdiction of this court on taxation of costs whether it is between party and party or between advocate and client is a jurisdiction exercised by the Deputy Registrar as held in the Donholm Rahisi Stores v East African Portland Cement Limited [2005] eKLR, Sharma v Uhuru Highway Development Limited[2001] 2 EA 530,Lubudellah & Associates Advocates v Nasser Ahmed T/A Airtime Business Solutions [2010] eKLR andKangethe & Mola Advocates v Corporate Insurance Company Limited[2021] eKLR.

37. Based on the foregoing the Respondent believed that this court has no jurisdiction to entertain the Application herein and that since the taxing master has not pronounced himself or herself to warrant the application herein, it is premature to say the list.

38. The Court was therefore urged to dismiss the Application with costs to the Respondent and direct the matter to proceed for taxation.

Determination 39. I have considered the Application, the affidavit, both in support of and in opposition thereof, the submissions filed and the authorities relied upon. In my view the issue revolves around whether the Applicant, in terms of the agreement between the parties herein and the law, settled the Respondent’s legal fees so as to bar the Respondent from taxing its costs against that Applicant in respect of the matter the subject of this determination.

40. Before dealing with the matter at hand, it is the Respondent’s contention that this Court lacks the jurisdiction to entertain this matter since the jurisdiction to deal with matters taxation is a preserve of the taxing officer and not a judge. It is not in doubt that matters purely taxation fall within the jurisdiction of a taxing officer and not the judge. This position has been adumbrated by the Court over time. The Court of Appeal in Sharma v Uhuru Highway Development Limited [2001] 2 EA 530, (Akiwumi J.A) dealt with the and held that the Judge;‘‘….not being seized of the taxation itself, and there being no appeal or reference to him as provided for by paragraphs 11(1) and 12 of the Advocates (Remuneration) Order from a decision of the taxing Officer who was dealing with the taxation, and the taxation not being a suit filed in the High Court for the recovery of costs, simply had no jurisdiction at all, to hear as he did, the Respondent’s application to strike out. This by itself makes his hearing of and his ruling of 19th May, 2000, of the Respondent’s application a nullity from the word go.’’

41. Waweru J on his part in Donholm Rahisi Stores v East African Portland Cement Limited [2005] eKLR, expressed himself as hereunder: -“Taxation of costs, whether those costs be between party and party or between Advocate and Client, is a special jurisdiction reserved to the taxing officer by the Advocate (Remuneration) Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision of taxation) made under Rule 11 of the Advocates (Remuneration) Order. The present application is not such reference. The application seeks an order that would have the effect of interfering with the special jurisdiction of the taxing officer does nothing beyond taxation of the bill of costs. The consequences of such taxation, for instance recovery of the taxed costs, will be a matter for the court, and the court can at that stage be asked to stay recovery of those costs pending whatever event, say, an appeal against the order granting the costs, or a reference under Rule 11 of the advocates (Remuneration) Order.’’

42. Similarly, Koome, J (as she then was) in Lubudellah & Associates Advocates versus Nasser Ahmed T/A Airtime Business Solutions[2010] eKLR found that: -“Formidable opposition was put forth by Counsel; Mr. Mutumbwa relied on his replying affidavit. It was argued that, this court has no jurisdiction to stop taxation before a taxing master. Taxation of Bills of Costs is a special jurisdiction provided for under rule 11 of the Advocates Remuneration Order and it is a preserve of the taxing master. The court can only stay the outcome of the taxation after a reference has been filed but the court cannot enter the realm of taxation and interfere with the jurisdiction of the taxing master.’’

43. To crown it, in Kangethe & Mola Advocates v Corporate Insurance Company Limited[2021] eKLR, a matter involving the same parties herein, it was held that:“In this case all I can only add that the Courts in Kenya are hierarchical, the jurisdiction of taxation of costs is vested upon the taxing master who should evaluate the matters placed before him/her and should do so independently. The jurisdiction that is vested in the High Court on the other hand is to deal with a reference emanating from the decisions of the taxing master. The issues of the amount of work done or not done by the advocate which were so eloquently presented by Mr. Issa should be presented to the taxing master. In other words, when defending his client, Mr, Issa should be able to argue the proportionate costs that should be paid to the advocates for the work which was done and which was not done. The high court should not micro manage the taxing master….The Respondent’s contention that this court lacks jurisdiction to grant the reliefs sought is well founded, given that the taxing Master has not rendered itself to give this court jurisdiction to relook into any grievances by any aggrieved party”

44. It is therefore clear beyond argument that in matters taxation, the Taxing Officer is the one properly clothed with jurisdiction to deal with the matter and unless and until the taxation is complete, the Judge has no business entering the arena of taxation. The powers of the Judge kick in after the decision on taxation has been made. The process of taxation must however be distinguished from the process of determining whether or not the Bill of Costs filed is the correct mode of determining fees between the parties. Where for example parties are agreed on their fees, taxation would not arise and where a party in those circumstances purports to tax his costs, it is proper for the party against whom the Bill is filed to object. Such an objection does not constitute taxation and therefore is outside the jurisdiction of the taxing officer. Such a scenario would occur, for example, where a retainer is contested. That the Taxation Officer has no jurisdiction to determine issues of retainer was appreciated by Azangalala, J (as he then was) in City Finance Bank Limited v Samuel Maina Karanja T/A Maina Karanja & Co. AdvocatesNairobi (Milimani) HCCC No 132 of 2004 in which the learned Judge expressed himself as follows:“In my view the Advocates Remuneration Order is a complete code in itself if instructions are admitted to have been given where the dispute is between the client and his or her advocate. However, where it is alleged that an Advocate acted without instructions, different principles apply and the Advocates Remuneration Order is not adequate in the circumstances. The Plaintiff in the present case alleges that it never instructed the Defendant to provide certain services. If it turns out to be true then the dispute goes beyond the Advocates Remuneration Order.”

45. The Court of Appeal in Joreth Limited v Kigano & Associates[2002] 1 EA 92 at 99 made it clear that the Taxing Officer whilst taxing his bill of costs is carrying out his functions as such only and that he is an officer of the Superior court appointed to tax bills of costs. The position was adopted by Waweru, J in the case of Abincha & Co Advocates v Trident Insurance Co Ltd [2013] eKLR where he held that:“Those issues were raising one fundamental issue, to wit, whether there were any costs due to the Advocate that the Taxing Officer could tax? I hold that it was an issue that could only be determined by a Judge. It is the kind of issue that the Taxing Officer, with the consent of both parties, should have referred to the opinion of the High Court. Only after determination of that fundamental issue by the High Court, that is, whether or not there were any costs due to the Advocate that could be taxed, would the bill of costs be referred back to the Taxing Officer for taxation, if it is found that there were costs that were due to the Advocate. I therefore hold that even the Taxing Officer of the Court did not have jurisdiction to hear and determine the main prayers of the notice of motion dated 20th February 2012. ”

46. It therefore follows that where an issue arises that does not concern the taxation, the Taxing Officer lacks the competence to deal with the same and the procedure is to refer the matter to the Judge for determination after which, depending on that determination, the Taxing Officer may continue with the matter.

47. In this case, the issue is whether or not Respondent’s costs arising from the legal services offered by the Respondent to the Applicant ought to be a subject of taxation. That in my view is a matter outside the taxation process and can only be dealt with by the Judge. Accordingly, I find that this Court has jurisdiction to entertain and determine this matter.

48. The parties herein have referred this Court to Section 45 of the Advocates Act as the relevant legal provision. Therefore, the determination of this matter revolves around the application of the provisions of section 45 of the Advocates Act to the fact of this case. The said section provides as hereunder:(1)Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may-a.before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;b.before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;c.before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf”.……..(6)Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

49. It is therefore clear that where there is a valid agreement under the aforesaid provision, the Advocates costs are not to be subjected to taxation. In other words, in that event the Advocate is barred from presenting his bill of costs for taxation. That was the position in Sifa International v Board of Trustees NSSF [2018] eKLR, where it was held as follows: -“The law firm has deposed in the replying affidavit that the agreement reached on 6. 8. 2010 was binding on both parties. It is my considered view again that it is not open for the advocate to do and a fresh bill of costs merely on account of the demand for the refund being demanded by the applicant. His fee note dated 11th June 2010 was construed to contain the entire costs for services rendered. Once the same was negotiated and agreed, the final figure reached then became the fees due and payable. The advocate seems to want to rely on this agreement and ran away from it at the same time…The demand letter does not in my view vitiate the agreement reached between the parties on 6th August 2010 in respect of that bill…The parties having compromised the fee note of 11th June 2010 are bound by the terms of that agreement thus calling the application of the provisions of section 120 of the Evidence Act into play. For this reason, I am persuaded to find in favour of the applicant that the bill of costs dated 7th December 2016 violates the principle of estoppel by deed...”

50. However, for section 45 to come into play, the agreement must be in writing. It need not be in one document as it can be in form of several correspondences which ultimately results into an agreement. It is in that light that I agree with the holding in Abincha & Co Advocates v Trident Insurance Co Ltd [2013] eKLR where it was stated thus:-“the Advocate having presented what appeared to be a final fee note upon completion of each brief….is estopped in law and in equity from turning around, between 8 and 11 years later as the case may be, to raise “final” bills of costs.”

51. In my view the final fee note becomes final once the same is adopted as correct by the Client otherwise if not adopted as presented then it follows that the said fee note remains an offer and without acceptance cannot constitute a contract between the parties. My view is supported by a holistic reading of Corporate Insurance Company Limited v Kang’ethe and Mola Advocates [2021] eKLR where it was held that: -“…settlement of the Advocates Fee Note constituted an agreement on the terms proposed in the fee and based on the first principles of the law of contract, the offer by the Advocates contained in fee was accepted by the Applicant who paid the consideration by way of settling it. If there is any outstanding interest, the Advocates are entitled to claim it through a suit for recovery. In other words, I find that the issue of fees was duly settled when the fee note was paid as such the Deputy Registrar does not have jurisdiction to tax the bill under section 45(6) of the Advocates Act as the settlement constitutes an agreement between the parties. The consequence of the above findings is that the Applicant’s application dated 14th January 2021 is allowed and the Advocates’ Bill of Costs dated 11th November 2020 be and is hereby being struck out.”

52. The issue of validity of agreements between advocates and clients with respect to remuneration was dealt with by Ochieng, J in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limited (2)[2006] 1 EA 5 in which the learned Judge held that reading of section 45(1) of the Advocates Act reveals that the agreements in respect of remuneration would be valid and binding on the parties thereto provided that the agreements were in writing and signed by the client or his agent duly authorised in that behalf. The same position was adopted by this Court in Peris Pesi Tobiko, Independent Electoral and Boundary Commission & Returning Officer Kajiado East Constituency [2017] where it was held as follows:“The question is whether the use of the phrase “our final fee-note is likely to be” amounts to unequivocal statement of the exact fee that the Client is bound to pay. To constitute a valid and binding agreement for the purposes of section 45 of the Advocates Act, it is expressly provided that the same must be in writing and signed by the client or his agent duly authorized in that behalf. In this case both the two letters are not signed by the Client. Whereas an agreement may be formed by a series of correspondences, the Client has not exhibited any document by which he signalled his acceptance of the proposed fees by the Advocate. In my view for a document to be said to constitute a valid and binding agreement for the purposes of section 45 of the Advocates Act, the same must not only be unequivocal that it signifies what the precise final amount is but must be signed by the person to be charged who in this case is the Client. This was the position adopted by Tanui, J inRajni K Somaia v Cannon Assurance (K) Ltd Kisumu HCMA No 289 of 2003….there being no validly binding agreement as contemplated by the law, the Advocate was perfectly entitled to file his bill for taxation”

53. In this case, it is contended by the Respondent that it issued the Applicant with a fee note on 21st February, 2020 but the Respondent failed to settle the fee note despite many reminders as a result of which the Respondent on 24th April, 2020, sent a demand on the outstanding fees and notice of taxation expressly informing the Respondent that failure to settle the fee note within 7 days from the date of the letter, the Respondent would proceed to file a bill of costs under schedule 5 of the Advocates Remuneration Order, 2014.

54. According to the deponent, it was an express term of the said demand and notice of taxation that if the matter proceeded to taxation, the Respondent would no longer be obliged to accept Kshs. 160, 271. 78 in payment thereof and that the unpaid fees would be attracting interest at 14% legally allowed under paragraph 7 of the Advocates Remuneration Order, until its full settlement.

55. In the supporting affidavit, it was deposed that the Applicant/Client satisfied all fee notes supplied to it by the Advocate/Respondent for services it had rendered to it in the matter and it was expressly stated that the Applicant/Client settled the final fee note issued to it amounting to Kshs. 160,271. 78. However, the Applicant/Client did not state the dates when the said fee note was sent and whether the payment was conditional and whether the payment was made as demanded by the Advocate/Respondent. Instead of filing a rejoinder to the Replying Affidavit, the Applicant/Client chose to counter the allegations made by the Respondent in the submissions where it was stated that upon conclusion of the matter, the Advocate/Respondent wrote to the Client/Applicant forwarding the Final Fee Note for payment as the final fees payable in the matter. Upon receipt of the final Fee Note, the Client/Applicant drew a cheque in favour of the Advocate/Respondent under the understanding that the amounts therein were the final fees payable in the matter. In the submissions, the Court was urged to take note of the fact that the said Advocate/Client Bill of Costs was allegedly filed on 17th November 2020 but was however not served on the Client/ Applicant till after the Applicant/ Client delivered the forwarding letter and that at the time of processing and approving payment in December, 2020, the Client/ Applicant had no knowledge whatsoever of the present Bill filed. It was submitted that the Bill of Costs was served upon the Client/Applicant on 8th January 2021, after the Advocate/Respondent was served with the letter forwarding the cheque for payments.

56. In my view these issues ought to have been placed before the Court by way of an affidavit since they are factual allegations. Submission is not the right forum to deal with contested matters of fact. Accordingly, the said averments, to the extent that they are not contained in the affidavit, are valueless.

57. What this means is that the Respondent, by its fee note, made a conditional offer to the Applicant regarding the Respondent’s fees stating that unless the offer was accepted by way of payment within 7 days, the Respondent would not be bound by the offer. There is no evidence that the offer was accepted in the terms made.

58. To constitute a valid and binding agreement for the purposes of section 45 of the Advocates Act, it is expressly provided that the same must be in writing and signed by the client or his agent duly authorized in that behalf. In this case both the two letters are not signed by the Client. Whereas an agreement may be formed by a series of correspondences, the Client has not exhibited any document by which he signalled his acceptance of the proposed fees by the Advocate. In my view for a document to be said to constitute a valid and binding agreement for the purposes of section 45 of the Advocates Act, the same must not only be unequivocal that it signifies what the precise final amount is but must be signed by the person to be charged who in this case is the Client. This was the position adopted by Tanui, J in Rajni. K. Somaia vs Cannon Assurance (K) Ltd Kisumu HCMA No. 289 of 2003.

59. Consequently, I find no merit in the Motion dated 2nd March, 2021 which I hereby dismiss with costs to the Advocate/Respondent.

60. It is so ordered

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 7TH JUNE, 2022. G V ODUNGAJUDGEIn the presence of:Ms Anami for Dr. Mutubwa for the Client/ApplicantCA Susan