[2017] KEHC 1927 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. CIVIL APPLICATION NO. 117 OF 2014 (OS)

IN THE MATTER OF THE ADVOCATES ACT, CAP 16 LAWS OF KENYA

AND

IN THE MATTER OF MORRIS GUCHRA T/A MORRIS NJAGE & COMPANY ADVOCATES

AND

IN THE MATTER OF ADVOCATE/CLIENT BILL OF COSTS

INDEPENDENT MEDICAL LEGAL UNIT.........….....................................1ST APPLICANT

LIZA CATHERINE WANGARE MWANGI………...............................…..2ND APPLICANT

VERSUS

NJAGE MORRIS GUCHURA T/A MORRIS NJAGE & CO. ADVOATES.....RESPONDENT

R U L I N G

1. This is ruling on the application dated 3/03/2015 seeking for orders that:-

a. The respondent’s Advocate/Client bill of costs be taxed at Kshs.1,022,769/=.

b. In the alternative the respondent files his Advocate/Client bill of costs within 14 days of this order.

c. Costs of this application be provided for.

2. The application is supported by the affidavit of Peter Kiama, the Executive Director of Independent Medical Legal Unit (IMLU) who states that he has the authority of the 2nd applicant to swear the affidavit on her behalf. He states that in the year 2004, the 2nd applicant approached Litigation Fund Against Torture (hereinafter called the Fund) for assistance in seeking justice for the torture she underwent at the hands of the police. The Fund agreed to fund the litigation on behalf of the 2nd applicant in Embu HCCC No. 31 of 2007 in which the Attorney General was the defendant.

3. The Fund and the 2nd applicant entered into an agreement and a cheque of KShs.70,000/= was paid as instruction fees. The Fund later closed business and Independent Medical Unit took over the cases that were being funded by the Fund and continued to cater for the expenses incurred in the suit filed by the 2nd applicant. Judgment was delivered in favour of the 2nd applicant for Kshs.7,122,915/= plus costs.

4. The respondent filed a party to party bill of costs in which he was awarded Kshs.681,846/=. The respondent was entitled to an advocate lien over the entire decretal sum plus costs awarded to the 2nd applicant until his fees were paid in full by virtue of this court’s ruling delivered on 1/08/2014. The court directed that the respondent files within 14 days the Advocate/Client bill of cost for taxation in the event that he is not paid within 30 days.

5. The 2nd applicant through the Commission of Administrative Justice (Office of the Ombudsman) successfully filed Miscellaneous Application JR No. 171 of 2014 seeking for payment of the decretal sum plus costs. On 24/10/2014 Justice Odunga ordered that the sum of KShs.5,422,726. 35 be released to the 2nd applicant and Kshs.4,356,846/= be deposited in court pending determination of fees between the respondent’s firm and IMLU. The respondent failed to either serve the 1st applicant with the bill of costs or file an Advocate/Client bill of cost as ordered by the court.

6. It is further stated that the party and party bill having been taxed at KShs.681,846/=, adding half the amount, the Advocate/Client bill should be taxed at KShs.1,022,769/= to expedite the release of the rest of the money held by the court. The applicant urges the court should tax the costs owed to the respondent to prevent further delay from justice.

7. The respondent opposed the application on grounds that IMLU was not a party to this case and has no locus standi to apply for taxation of the Advocate/Client bill of cost. The respondent further argues that this court has no jurisdiction to on taxation of bills of cost and that the power to do so lies with the Deputy Registrar. The high court jurisdiction can only be invoked under paragraph 12 of the Advocate (Remuneration) Order where parties to the taxation consent to refer any dispute arising thereof for an opinion. It was also argued that paragraph 11 of the same Order invokes the jurisdiction of the high court in the event of an objection to the decision of the taxing master. The respondent submits that this application does not fall under either paragraph 11 or 12 of the Order.

8. The case of OTIENO RAGOT & CO. ADVOCATES VS KENYA AIRPORTS AUTHORITY [2015] eKLR where the Court of Appeal held that the High Court cannot usurp the functions of a taxing officer in the first instance and that it has recourse by way of reference under paragraph 11.

9. The respondent included as an issue for determination whether the 1st applicant is the client with the power to enter into a biding retainer agreement. This issue is res judicatasince it was dealt with in previous rulings of this court.

10. The issues for determination in this application are whether this court has jurisdiction to grant the orders sought and whether the applicant is entitled to the same.

11. It was held in the case of MG SHARMA VS UHURU HIGHWAY DEVELOPMENT LTD Civil Appeal No. 133 of 2000that a judge has no jurisdiction to hear a matter arising from the advocate and his client for the jurisdiction lies with the taxing officer.

12. It is not in dispute that the Deputy Registrar has original jurisdiction to deal with matters of taxation and that the power of the high court can only be inferred under the provisions of paragraphs 11 and 12 of the Advocates (Remuneration) Order in the event that an error of principle is disclosed or the award is manifestly excessive.

13. The applicants in this case have not presented the Advocates/Clients bill of cost before this court for taxation. I therefore agree with the respondent and the findings in the Otieno Ragot Case (supra) that this court has no jurisdiction to tax any bill of costs.

14. The applicant has sought for an alternative prayer that the respondent be ordered to file his advocate/client bill of cost within 14 days. The jurisdiction of this court to grant this order or any other order as it deems fit has not been challenged.

15. The dispute on legal fees between the applicants and the respondent has a long history. The Litigation Fund was instructed by the 2nd applicant to give her financial support HCCC 31 of 2007 against the Attorney General. After the Fund closed business, the case was taken over by IMLU who continued providing financial support to the 2nd applicant.

16. The 2nd applicant later entered into a legal fees agreement with the respondent at the rate of 25% of the decretal amount. It is the case of the 2nd applicant that she was coerced to sign the agreement by the respondent. the court noted in its ruling delivered on 16/08/2016 that the agreement had been altered without being countersigned by the parties. It is this agreement that the respondent has continuously relied on thereby neglecting to file the Advocate/Client bill of costs as ordered by the court in its ruling delivered on 1/08/2014.

17. The order by Ong’udi J. directed the respondent to file and tax his advocate/client bill of costs within 14 days if he is not paid his fees within 30 days. It is over three years since the order was given and the bill of costs has not been filed. A substantial sum of the decretal amount of Kshs.4,356,846/= was ordered to be deposited in court pending determination of the respondent’s fees.

18. The amount continues to be held in court thus denying the 2nd applicant the fruits of her judgment. So long as the said amount continues to be held in court without any justification, the 2nd applicant continues to suffer for no fault of her own. It is in the interest of justice that this stalemate be resolved to facilitate the release of the funds to the 2nd applicant.

19. The 1st applicant states that it is out of this frustration that the 2nd applicant has brought this application. The 2nd applicant is ready and willing to pay to the respondent his legal fee which requires to be taxed. However, the respondent continues to be adamant insisting that the repudiated agreement should be enforced. It is not in dispute that the respondent did not appeal against the orders of the court that directed him to file the bill of costs within 14 days over three years ago.

20. The amount of Kshs.1,022,769/= offered by the 2nd applicant is within the provisions of the Advocates (Remuneration) Order. It is my considered opinion that the said amount should be paid to the respondent being his legal fees pending the filing and taxation of the Advocate/Client bill. The respondent will be at liberty to recover any excess amount that may not be covered by the payment of Kshs.1,022,769/=.

21. For the foregoing reasons, this court finds the application merited in terms of the alternative prayer and makes the following orders in the interest of justice:-

a. That the respondent files and causes to be taxed the advocates/client bill of costs within 30 days and in default Kshs.1,022,769/= be released to him being the approximate legal fees.

b. That the balance of the legal fees upon taxation may be recovered from the 2nd applicant.

c. That the balance of the decretal amount deposited in court vide order in Nairobi JR. No. 171 of 2014 be released to the 2nd applicant.

d. That the respondent meets the cost of this application.

22. It is hereby so ordered.

DATED, DELIVERED AND SIGNED AT EMBU THIS 13TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Andande for Momanyi for the 2nd Applicant