[2017] KEHC 2097 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 40 OF 2015

IN THE MATTER OF THE ADVOCATE ACT

AND

IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT

BETWEEN

GEORGE MIYARE t/a

ATONGA MIYARE & ASSOCIATES ADVOCATES …… .APPLICANT

VERSUS

EVANS GOR SEMELANG’O…………………… .RESPONDENT

RULING

1. This decision comprises two verdicts, one ruling and a judgment. By an application dated 10th February 2017 filed on 13th February, 2017 the advocate/applicant Ms George Miyare t/a Miyare and Company Advocates seeks from this court orders that:

a. Judgment be entered for the client/respondent for the sum of kshs 3,602,704. 00 as appears in the certificate of taxation dated 17th January,2017 with interest at 18% per annum from the date of taxation until payment in full.

b. Costs.

1. There is also an application by the respondent/clientEVANS GOR SEMELANG’O. It is dated 20th January 2017 seeking orders that:

a. the ruling and reasons for taxation by the taxing officer dated 22nd December 2016 be set aside and or varied and the respondent’s advocate/ client bill of costs be taxed afresh; that there be stay of the taxation ruling and reasons thereof pending hearing and determination of the reference herein:

b. Costs.

2. On 1st March 2017 the parties agreed and this court directed that the two applications be heard together.

3. Parties therefore complied with the court’s directions to file their responses s and written submissions which they exchanged and adopted as canvassing their respective applications with no highlighting.

4. This ruling was to be delivered on 26th July 2017 but the court was on leave that had earlier not been anticipated hence the reschedule.

5. I will first determine the application filed by the client/respondent dated 20th January 2017 as it was the earlier application (first in time) before deciding on the application filed by the advocate/applicant dated 10th February 2017 being the latter application.

6. The application dated 20th January 2017 challenges the taxation ruling and reasons given by the Taxing Master Mrs E. Mburu on 22nd December, 2016. The application by way of chamber summons is brought under the provisions of paragraph 11 of the Advocates Remuneration Order and is otherwise known as a Reference. The application/Reference was filed on 23rd January 2017.

7. There are 15 grounds upon which the reference is premised and supported by an affidavit sworn by the client/respondent’s advocate Mr Lawrence Oigoro Nyangito sworn on 20th January 2017.

8. The Reference is vigorously opposed by the advocate/applicant who filed a replying affidavit sworn by Charles Midega Advocate On 10th February 2017 and filed in court on 13th February 2017. However, of great significate to proceedings of this nature is the applicable law and therefore the court must first determine whether the Reference as filed was (1) filed in time and or in accordance with the stipulations under the Advocates Remuneration Order before delving into the merits thereof.

9. This court notes that the costs which are being challenged were advocate/client taxed costs which were taxed by the Taxing Master on 22nd December 2016 Honourable E. Mburu ( Deputy Registrar) of this court.

10. The challenge by way of chamber summons, to the said taxation was filed on 23rd January 2017 which is one month (30) days and one day thereafter. Paragraph 11 of the Advocates Remuneration Order provides for References in respect to the taxing officers’ decisions.

11. The paragraph states:

1) Any party who objects to the decision of the taxing officer may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

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

3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under Sub paragraph (2) may, with the leave of the judge, but not otherwise, appeal to the Court of Appeal.

4) The High Court shall have power in it discretion by order to enlarge the time fixed for in Sub paragraph (1) or Sub paragraph (2) for taking of any step: Application for such order may be made by chamber summons upon giving to every other interested party not less than 3 clear days notice in writing or as the court may direct and may be so made not withstanding that the time sought to be enlarged may have already expired.

12. The taxing officer’s ruling made on 22nd December 2016 was detailed with reasons for taxation. Therefore, it was not difficult for the client to simply file an objection and thereafter a reference without asking for reasons for taxation within the stipulated period.

13. In addition, there is no application for enlargement of time within which the reference ought to have been filed as stipulated in paragraph 11(4) of the Advocates Remuneration Order.

14. Between 22nd December 2016 and 23rd January 2017 when the chamber summons for challenging the taxation was filed, there was no objection filed with regard to any specific items that the respondent/client wished to challenge in the subsequent reference by way of chamber summons.

15. Such objection ought to have been filed within 14 days after the decision by the taxing officer, by giving notice to the taxing officer of the items of taxation to which the client objects.

16. In the instant case, the applicant simply filed an application challenging the taxation made on 22nd December 2016 and urging the court to vary/set aside the said taxation.

17. Although it would be superfluous to ask for reasons for the taxation where such reasons, as is in this case, were given by the taxing officer in her detailed ruling on taxation, the respondent/client was obliged to file an objection to the specific items of taxation that he had issues with, within 14 days of the date of taxation.

18. In other words, before one files a reference, he must have lodged a notice of objection to the specific items within 14 days of the date of ruling on taxation and where such time of 14 days has elapsed then an application for enlargement of time can be filed to the judge for consideration.

19. In this case, no such objection was filed with the taxing officer and no application for enlargement of time for filing objection was filed with the judge. It follows that the Reference herein as filed is fatally incompetent as it is not filed on the basis of any objected to items. It is also filed outside the stipulated timeframe.

20. Accordingly, the reference is amenable for striking out. The same is hereby struck out as filed on 23rd January 2017 with an order that each party do bear their own costs.

21. Having disposed of the “Reference” filed on 23rd January 2017 striking it out, I now proceed to determine the application dated 10th February 2017 filed by the advocate seeking for judgment to be entered against the respondent/client in favour of the applicant/advocate in accordance with the certificate of taxation dated 17th January 2017 as per the taxation done on 22nd December 2016 by the Deputy Registrar/Taxing Officer E. Mburu Honourable. That certificate of taxation had not been set aside by any court and there is no dispute as to the retainer of the advocate by the client. The amount taxed was kshs 3,602,704. 00. The client also never filed any replying affidavit contesting the taxed costs and his attempt to challenge the taxation has been disposed of by the court striking out his application dated 20th January 2017.

22. There is nothing on record to show that the taxing officer exceeded her powers in taxing the costs and a certificate of taxation issued on 17th November 2017.

23. Under Section 51(2) of the Advocates Act Cap 16 Laws of Kenya:

“ 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 recovered thereby; and the court may make such order in relation thereto as it thinks fit, including where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

24. There is absolutely no ground upon which the advocate should not be given his just dues having followed due process including mediation by Professor P.L.O Lumumba which mediation collapsed necessitating the taxation to proceed.

25. Accordingly, I find the application by the advocate merited. I enter judgment for the applicant/advocate against the respondent/client in the sum of kshs 3,602,704 as per the Certificate of Taxation dated 17th January 2017.

26. The applicant also prayed for interest at 18% per annum from the date of taxation until payment in full. Rule 7 of the Advocates Remuneration Order stipulates that.

“ An advocate may charge interest at 14% per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client provided such claim for interest is raised before the amount of the bill has been paid or tendered in full.

27. The bill of costs as taxed was without any interest and no such interest at 18% per annum was ever sought on disbursement in the bill of costs dated 10th September 2015. An advocate who files his bill of costs without first raising the issue of interest with his client forfeits that interest as stipulated in Rule 7 above and even if the issue was raised before taxation, the maximum chargeable interest would be 14% per annum and not more.

28. That being the case, this court would only award any interest on taxed costs at court rates from the date of taxation which is 22nd December 2016 until payment in full.

29. Accordingly, I enter judgment for the advocate/applicant for shs 3,602,704. 00 plus interest at court rates from 22nd December 2016 until payment in full. I order that a decree be issued to that effect.

30. Costs are in the discretion of the court. I note that the application of this nature is intended to conclude all the pending issues between the parties and therefore it would not be appropriate to restart another process of taxation of costs by awarding further costs which will escalate the dispute. In the end, I order that each party shall bear their own costs of the application by the advocate dated 10th February 2017.

Dated, signed and delivered in open court at Nairobi this 8th day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Oriwo advocate h/b for Mr Miyare for advocate

N/A for the Client

CA: George