[2022] KEHC 11240 (KLR)

Endmor Steel Millers Ltd v Githinji James Murimi & Muchiri Christopher Kimamo t/a Githinji Kimamo & Co. Advocates (Civil Suit E117 of 2021) [2022] KEHC 11240 (KLR) (Civ) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11240 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E117 of 2021

CW Meoli, J

June 13, 2022

Between

Endmor Steel Millers Ltd

Plaintiff

and

Githinji James Murimi & Muchiri Christopher Kimamo t/a Githinji Kimamo & Co. Advocates

Defendant

Ruling

1. Before the court for determination are two motions filed by Endmor Steel Millers Ltd (hereinafter applicant). The first motion to be filed by the applicant is dated May 17, 2021 and is expressed to be brought under section 1A, 1B, 3A & 63(e) of the Civil Procedure Act, order 20, and order 51 rule 1 of the Civil Procedure Rules. The live prayer in the motion seeks an order that“pending hearing and determination of the suit, this honourable court be pleased to grant a temporary stay of execution and a stay of all taxation proceedings in Nairobi HC ELRC Misc App 5/18, 6/18, 7/18 & 8/18, Nairobi HC Misc App No 77/18, 78/18, 79/18, 80/18, 81/18, 82/18, 83/18, 84/18, 85/18, 86/18, 87/18, 88/18, 89/18, 90/18, 91/18, 92/18, 94/18, 95/18, 96/18, 97/18 & 98/18 and Nairobi ELC Misc App 218/17 pending the taking of accounts between the parties.”(sic).

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by the Gabriel Kiama who describes himself as a director of the applicant company, duly authorized and competent to swear the affidavit on behalf of the applicant. He swore that there is in existence 26 miscellaneous causes in respect of advocate-client bills of costs between their erstwhile advocates, namely the firm of Githinji Kimamo & Co Advocates (hereafter the respondent) and the applicant and that while some bills are pending taxation, or are in the process of taxation, others are already taxed, and judgments therein are being executed. That the Respondent had admitted receipt of payments in respect of some of the items in the bills of costs, but the taxing masters failed to consider the said payments to the respondent in arriving at the taxed amounts in majority of the taxed matters.

3. The deponent further states that the respondent had begun the process of execution through the attachment of the applicant’s tools of trade; yet proper accounts had not been taken, thus, exposing the applicant to the double jeopardy of being required to make double payments in respect of the same matters. He further asserts that unless the temporary orders sought are granted, the applicant will suffer irreparable loss and damage, thus rendering the suit nugatory; that it is in the interest of justice that the motion be granted to allow parties to take accounts. That the respondent will suffer no prejudice in the event.

4. When the above motion came up for directions before Ong’udi J on May 26, 2021, the court upon hearing learned counsels for both parties, issued directions and granted a conditional interim order of stay of execution pending inter partes hearing. The condition required the applicant to deposit the sum of Kshs 4 million into court within 14 days. There was no compliance with the condition.

5. The respondent opposed the first motion through a replying affidavit dated July 9, 2021 and a supplementary affidavit dated July 21, 2021, both sworn by James Githinji Murimi , a partner in the respondent law firm and duly authorized and competent to swear the affidavit on behalf of the respondent firm. He takes issues with the motion, first, on grounds that only Nairobi Misc App No 91/18, 92/18, 96/18, 97/18 and Nairobi Misc App No 5/18 are pending taxation whereas all the other bills subject to the motion had been taxed and/or certificates of taxation issued; and hence the only available option in that regard was for the applicant to file references. Further, he deposed that in the various bills of costs which had been taxed and wherein the respondent had expressly admitted receipt of a deposit of Kshs 30,000/-, such sums had been deducted and or taxed off in the final awards by the taxing master. That the applicant’s assertion to the contrary is a false and intended to deny the respondent his duly taxed costs for work rendered.

6. The deponent pointed out that that the applicant has not tendered any evidence by way of bank deposit slips, copies of cheques or bank statements in proof of any further payments alleged to have been made; that motion has been filed mala fides as the respondent was given an opportunity to be heard and adduce evidence before the taxing master and at this stage can only challenge the various rulings of the taxing masters through a reference, and not by way of a claim for accounts as the applicant is cunningly attempting to do in the instant suit. Further the deponent asserts that the applicant has not demonstrated the likelihood of substantial loss and is therefore undeserving of the orders sought; and further that the respondent is entitled to interest from the date the initial demand for payment of fees was made. Finally, he deposes that it is in the interest of justice that the orders sought by the applicant herein be denied.

7. The applicant later moved this court by a second motion dated June 14, 2021 expressed to be brought under section 1A, 1B, 3A, 63(e) & 80 of the Civil Procedure Act, order 45 rule 1 & order 51 rule 1 of the Civil Procedure Rules seeking among others an order that this court be pleased to set aside, vary and or review the ruling and orders of May 26, 2021 by Ong’udi, J directing the applicant to deposit a sum of Kshs 4 million as condition for stay of execution.

8. The grounds on the face of the second motion are equally amplified in the supporting affidavit sworn by the Gabriel Kiama, who asserts that the applicant’s efforts to satisfy the condition for deposit had proved futile; and that the court’s order was erroneous and punitive to the applicant and ought to set aside. He swears that if the orders are not varied or set aside, there is imminent danger that the respondent will proceed to execute causing great injustice to the applicant; that the motion is based on bona fide grounds; and no prejudice would be visited upon the respondent if the orders sought are granted.

9. The respondent similarly opposed the motion through the replying affidavit sworn by James Githinji Murimi dated July 9, 2021. The substance of the latter replying affidavit is similar to the contents in the replying affidavit sworn in opposition to the first motion dated May 17, 2021. The deponent additionally states that the applicant has admitted to failure to comply with the orders issued by the court and is undeserving of the orders sought in the second motion, and in any event, the interim stay granted had since lapsed sand hence there was no interim order capable of extension. He further states that the motion does not meet the threshold for review and or setting aside of the order made on May 26, 2021 as there are no new facts presented before the court; that the court had considered the amount due from the applicant when it ordered the deposit of the monies as a condition for stay of execution; that no proof has been tendered that the applicant is facing financial difficulties; and that without prejudice to the foregoing, the applicant had not demonstrated that the order they seek to set aside was based on wrong legal principles.

10. In a rejoinder by way of a further affidavit seemingly addressing both replying affidavits, Gabriel Kiama deposed that the applicant is not challenging the certificates of costs as asserted by the respondent. He states that the intent in the motion dated May 17, 2021 is a temporary stay of the taxation and execution of the bill of costs to allow parties to take account of the amounts already paid and ascertain any sums outstanding and payable to the respondent. He further deposes that all efforts to comply with the order for deposit had failed owing to the difficult financial situation the company is facing on account of the Covid-19 pandemic. That the applicant had timeously moved the court with the review motion and the court is empowered in exercise of its discretionary power to review or set aside its orders; that the applicants have approached the court with clean hands by expressing willingness to deposit Kshs 900,000/- as security considering that the respondent is not owed any monies. In conclusion he deposes that it is only fair and in the interest of justice that the two motions be allowed as prayed.

11. Both motions were simultaneously canvassed by way of written submissions. Submitting on the motion dated May 17, 2021 counsel for the applicant contended that from the evidence attached to the respective motions, it is evident that out of the total taxed sum of Kshs 6,587,583. 60/- the applicant has paid a total of Kshs 7,579,834/- and therefore the applicant does not owe the respondent any monies. Those accounts ought to be taken to ascertain if any amount is outstanding to the respondent firm. Counsel placed reliance on the decision in PM Wamae & Company Advocates v Dickson Daniel Karaba [2015] eKLRto urge this court to exercise its discretion in the Applicant’s favour and in the interest of justice.

12. Concerning the motion dated June 14, 2021 counsel argued that at the time of the orders sought to be reviewed, the respondent had not filed a replying affidavit to the motion dated May 17, 2021 and counsels merely made submissions from the bar. It was further contended that the court was not properly seized of the matter and in an apparent mistake and/or error ordered the applicant to deposit the sum of Kshs 4 million. Counsel asserted that this court has inherent power to make such orders as may be necessary for the ends of justice through review and or setting aside of its orders as it deems fit.

13. Citing the decision in Pancras T Swai v Kenya Breweries Limited [2014] eKLR as cited with approval in Samuel Amugune & 4 others v Attorney General [2018] eKLR counsel asserted that the second motion is premised on the second and third limb of the provisions of order 45 (1) of the Civil Procedure Rules; that the applicant has satisfactorily explained it does not owe the respondent any monies and the order for deposit would have been made in error. While calling to his aid the decision in David Kipkemoi Koskei v Kenya Commercial Bank & 2 others [2021] eKLR counsel contended that the purpose of requiring a party to deposit security as a condition for stay is to guarantee the due performance of the decree or order rather than to punish a party. Counsel submitted that both motions ought to be allowed.

14. The respondent’s counsel, in submitting on the motion dated May 17, 2021, relied on the decision in Doris Awino Abira v MI Wafula & Co Advocates, Kisumu High Court Misc Civil App No 4 of 2019 to argue that applicant’s motion is premature as it seeks to stop the only known process for determination of legal costs between an advocate and his client. Counsel further asserted the High Court has no jurisdiction to deal with ELC or ELRC taxation matters; that the applicant’s motions are an exercise in forum shopping and a waste of precious judicial time. While citing the decision in Keziah Gathoni Supeyo v Yano t/a Yano & Co Advocates [2019] eKLR counsel asserted that there was no evidence tendered by the applicant to prove alleged payments to the respondent and that the proper forum to challenge a certificate of taxation is a reference.

15. Concerning the prayer for stay of execution, counsel cited several decisions including, Lubulellah & Associates Advocates v N.K Brothers Limited [2015] eKLR, Century Oil Trading Company Ltd v Kenya Shell Limited [2008] eKLR and RWW v EKW [2019] eKLR. He asserted that the applicant has failed to adduce evidence to substantiate alleged likelihood of substantial loss.

16. Regarding the motion dated June 14, 2021 counsel relied on the case of Canadian MetalCoLtdv Canadian Broadcasting Corp (No 2) [1975] 48 DLR (30) cited with approval in Republic v Principal Secretary, Ministry of Defence Ex Parte George Kariuki Waithaka [2019] eKLR to argue that the applicant has approached the court with unclean hands, having failed to comply with the court’s order for deposit and that the motion has not satisfied the legal threshold to warrant review and or setting aside of the order issue on May 26, 2021. The court was urged to dismiss both applications with costs.

17. The court has considered the material canvassed in respect of the two motions. In the court’s view, the motion dated June 14, 2021 is spent. The orders which are the subject thereof were interim in nature and were intended to be in place pending the inter partes hearing of the motion dated May 17, 2021, if the applicant complied with the condition for deposit. Now that the substantive motion has been heard, no purpose will be served by the court considering the merits of the motion. Parties will bear their own costs in respect of the said motion.

18. Concerning the motion dated May 17, 2021, the court has perused the plaint herein and considered the provisions of order 20 of the Civil Procedure Rules. The plaint herein contains one key prayer, namely, an order for the taking of accounts between the parties. In view of material canvassed by the parties, it is important to state from the outset that the suit is not a reference from taxation rulings. Yet, some of the averments in the plaint appear to challenge the various taxation rulings about which the applicant is aggrieved. See for instance paragraphs 6, 7 and 8 therein. The same complaints are repeated in the applicant’s affidavit material in support of the motion.

19. It is undisputed that 21 of the 26 miscellaneous taxation causes listed in the motion (made up of 24 causes in the High Court and two matters filed in the Environment and Land Court (ELC) and the Employment and Labour Relations Court (ELRC) are concluded, certificates of taxation issued, judgment entered, and execution proceedings been commenced. According to the respondent, only five causes comprising four causes in the High Court and one in the ELRC are pending taxation. There is no evidence that references have been filed in respect of any of the concluded taxation causes.

20. Order 20 of the Civil Procedure Rules provides as follows:“1. Where a plaint prays for an account, or where the relief sought or the plaint involves the taking of an account, if the defendant either fails to appear or does not after appearance by affidavit or otherwise satisfy the court that there is some preliminary question to be tried, an order for the proper accounts with all necessary inquiries and directions usual in similar cases shall forthwith be made.2Order for accounts on counterclaim [order 20, rule 2. ]A defendant to an action commenced by plaint, and who has filed a counterclaim which includes a claim for an account or a claim which necessarily involves taking an account, on—athe plaintiff;(b)any other party; or(c)any person who becomes a party by virtue of such service, may apply for an order under this rule.3. Procedure [order 20, rule 3. ]An application for such order as is mentioned in rule 1 and 2 shall be made by chamber summons and be supported by an affidavit where necessary, filed on behalf of the plaintiff stating concisely the grounds of his claim to an account; and such application may be made at any time after the time for entering an appearance has expired.4. Orders by court [order 20, rule 4. ]On hearing of the application, the court may, unless satisfied that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.

21. Pursuant to the provisions of section 48(2) and (3) of the Advocates Act, an advocate may file a suit against his client for recovery of costs or file a bill of costs between him and the client which“may be taxed notwithstanding that no suit for recovery of costs has been filed.”In this instance, the respondent opted to file bills of costs for taxation. In my considered view, such a bill of costs qualifies as a matter“ where the relief sought or the plaint involves the taking of an account”under order 20 rule 1 of the Civil Procedure Rules. For where a bill of costs is filed instead of a suit for recovery of costs, such a bill of costs is equivalent to a suit by a plaint, and indeed taxation proceedings on a bill of costs necessarily involve the taking of accounts. The applicant has asserted as much in his repeated complaint that the taxing masters failed to take into account certain payments allegedly to the respondent in respect of the bills presented by the respondent for taxation.

22. Therefore, this court is doubtful that despite the existence of the 26 taxation causes, a new cause of action had accrued to the applicant giving them the right to lodge a fresh suit as they have done, based on the mere entitlement to accounts. A reading of the provisions of order 20 as conferring a fresh and separate cause of action for accounts in respect of an existing suit that necessarily involves taking of accounts (and such suits comprise the bulk of civil disputes) would lead to an unsustainable proliferation of suits and escalate litigation costs while clogging the wheels of the administration of justice. The wording of the order clearly anticipates the filing of an application in the existing suit so long as it entails the taking of accounts.

23. Besides, the key issues raised in the applicant’s plaint and affidavit material appear to properly belong to a reference in respect of matters where taxation has been concluded and judgment entered, rather than to a suit for accounts. Section 51(2) of the Advocates Act provides that:“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the court, be final as to the amount of the costs covered thereby, and the court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

24. Where the execution process has commenced in the subject taxation matters, the application for accounts and for stay of execution ought properly to be made in those specific matters, not only because the amounts and facts of each matter are different and unique but also for the sake of good order. Since it is doubtful that a new cause of action has arisen that is distinct from the causes of action upon which the earlier proceedings were based, the procedure adopted by the applicant to bring an omnibus suit and application in respect of the 26 existing miscellaneous causes between the same parties, in respect of the same subject matter to my mind appears untenable. One is tempted to think that the procedure was intended to circumvent the established procedure and stipulated timelines for opposing a bill of costs or for challenging the decision of a taxing master in respect of a taxed bill of costs.

25. It was surprising that some of the arguments made in respect of the prayer for stay of execution appeared to contemplate the principles governing stay pending appeal, and yet, the matter before this court is a fresh suit, and not a reference or application to stay execution of the judgments in the miscellaneous causes pending appeal. As regards the bills pending taxation, the forum in which an application for accounts and stay of taxation proceedings should be made appears to me to be the said taxation proceedings under order 20 rule 3 of the Civil Procedure Rules, or better yet, during the taxation proceedings, where the applicant could present evidence of payments made so that the same can be considered by the taxing master.

26. Based on the foregoing, the court takes the view that the motion dated July 15, 2021 should have been properly filed in the respective subsisting taxation proceedings and any application or matters pertaining to the taking of accounts canvassed in the said proceedings at the appropriate time. Further, at this stage, the court is not satisfied that the suit upon which the motion is predicated can in the circumstances of this case pass muster the provisions of section 6 and 7 of the Civil Procedure Act which state:“6. Stay of SuitNo court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed…

7. Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”.

27. In the circumstances, the court will order the motion dated July 15, 2021 struck out with costs to the respondent. Additionally, for the reasons given, the court hereby makes an order to stay the suit herein.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 13TH DAY OF JUNE 2022. C MEOLIJUDGEIn the presence of:For the applicant: N/AFor the respondent: Mr ThimbaC/A: Carol