[2022] KEHC 16160 (KLR)

Hillary Cheboi Chelimo t/a CK Advocate v China State Construction Engineering Corporation Ltd (Miscellaneous Application E054 of 2022) [2022] KEHC 16160 (KLR) (Commercial & Admiralty) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16160 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Admiralty

Miscellaneous Application E054 of 2022

A Mabeya, J

December 9, 2022

Between

Hillary Cheboi Chelimo t/a CK Advocate

Advocate

and

China State Construction Engineering Corporation Ltd

Client

Ruling

1. The application before court is dated 7/2/2022. It seeks the striking out of the Advocates/respondents bill of costs. It is premised on the grounds set out on the face of it and the affidavit of Liu Hanfengwho is the manager of the respondent.

2. The applicant’s case is that it instructed the respondent (“the advocate”) to represent it in a review application in court and Kshs 500,000/- as fees. It subsequently instructed the advocate to lodge a notice for withdrawal of the said application whereby the same was marked as withdrawn.

3. The later raised a fee note of Kshs. 500,000/- with respect to the Public Procurement Administrative Review Board (“PPARB”) Application. However, the same had been settled on 18/10/2021. Despite the remuneration having been agreed upon, the advocate lodged the advocates/client bill of costs dated 20/1/2022 whereby a notice of taxation was issued. The applicant contended that the deputy registrar lacks jurisdiction to hear and determine that bill of costs.

4. The application was opposed through a replying affidavit dated 23/2/2022 sworn by Hillary Cheboi Chelimo. He stated that he received instructions to represent the client before the PPARB in a procurement dispute but never entered into any fee agreement in relation to the services offered. That the fees was to be paid to the firm in accordance with the provisions of the Advocates Remuneration Order. It was contended that the issues on jurisdiction ought to be raised before the deputy registrar as there was a pending application on the same before that court.

5. The application was canvassed by way of written submissions. The applicant submitted that the jurisdiction to determine the present application was derived from section 45(6) of the Advocates Act. That where there exists an agreement on remuneration, taxation of advocate-client bill of costs is precluded. It was further submitted that the fee note dated 6/11/2021 constituted to a valid fee agreement between the advocate and the applicant. That the advocate was the author of the fee note and the words were clear enough to infer an agreement between the parties.

6. For the respondent, it was submitted that there was agreement for the payment of Kshs. 500,000/= for the settlement of the services rendered in respect of PPARB application no 125 of 2021. That since the deputy registrar has the jurisdiction to tax the bill of costs, it is the same officer who ought to decide on the issue of jurisdiction.

7. I have carefully considered the application and the submissions of Learned Counsel. The applicant’s contention is that the deputy registrar lacks jurisdiction to tax the advocates bill of costs as the same is barred by section 45(6) of the Advocates Act. On the other hand, the respondent contends that the fee note dated 6/11/2021 is not conclusive evidence that there was a fee agreement between the parties.

8. Section 45 of the Advocates Act provides: -(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.

9. InKakuta Maimai Hamisi, Peris Pesi Tobiko v Independent Election and Boundaries Commission and Returning officer Kajiado East Constituency[2017] eKLR, the court stated: -“To constitute a valid and binding agreement for the purpose of section 45 of the Advocates Act, it expressly provides 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 signaled 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 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 Raini K Somaia v Cannon Assurance (K) Ltd Kisumu HCMA No 289 of 2003”.

10. In Nzaku & Nzaku Advocates v Tabitha Waithera Mararo as Trustee of Tracy Naserian Kaaka (minor) & others[2020] eKLR, it was held that: -“An agreement for fees contemplated under section 45, is a contract whose terms and conditions must be clear and unambiguous. There must be consensus or meeting of the mind between the parties and it must also be entered into freely without undue influence or promise.”

11. In view of the foregoing, it is clear that in order for there to be a valid and binding agreement for the purposes of section 45 of the Advocates Act, the document relied on ought to be in writing and signed by both parties. Or, there must be exchange of correspondences from which, inference of an agreement by way of meeting of the minds of both parties can be deduced.

12. In the present case, what is relied on is a fee note dated 6/11/2021. The court has looked at the same. The court’s opinion is that the same does not constitute an agreement in the aforesaid terms. The fee note is titled, ‘legal fees agreed between client and counsel’. It is only signed by the advocate only. It is difficult to infer that there was an agreement between the parties on the legal fees.

13. Accordingly, I am satisfied that there was no agreement on fees between the parties. Having come to that conclusion, it follows that the bill of costs dated 20/1/2022 is properly before the deputy registrar who has the requisite jurisdiction to tax the same.

14. In the premises, I find no merit in the application and the same is dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A. MABEYA, FCIArbJUDGE