[2014] KEHC 1760 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 218 OF 2012

JAMES KARANJA MWANGI

(practising as J.K. Mwangi & Co. Advocates)……………………..ADVOCATE/APPLICANT

VERSUS

VILLA CARE LIMITED……………………………………………............................RESPONDENT

RULING

Before me is a Chamber Summons dated 14th March, 2014. It is expressed to be brought under Section 51 (2) of the Advocates Act (Cap 16) Laws of Kenya, Rule 62 A of the Advocates Remuneration Order 2009 and Section 3A of the Civil Procedure Act (Cap 21) Laws of Kenya. The respondent seeks orders to set aside the deputy registrar’s certificate of taxation issued on 23rd July, 2012 and striking out of the bill of costs dated 22nd March, 2012. Secondly he seeks that the applicant be ordered to redraft the bill of costs in compliance with Rule 62 A of the Advocates Remuneration Order 2009 in light of the change of advocates in HCCC No 2208 of 2007 which is the parent suit.

The application is premised on the grounds on the face of the application and the supporting affidavit of Mrs. Nelius Muthoni Wagenga. She averred that the bill of costs as drawn and taxed is excessive and was issued on wrong legal principles. That the applicant changed advocates prior to commencement of the hearing disentitling the applicant from full instructions. That the bill of costs does not appreciate that the current advocate did more work in the suit than the applicant who only drew pleadings. She stated she filed a similar application but the same was dismissed for non- attendance thereby the issue of instruction fees was not determined on merit.

In her submissions she relied on Rule 62A of the Advocates Remuneration Order and held the opinion that in a matter where several advocates acted in a matter, a single bill of costs shall be drawn by the advocate who came on record last. That there should be a certificate accompanying the bill of costs. That certificate should set out specific dates on which the advocates acted. On the applicant’s contention that this application is res judicata,the respondent submitted that the earlier applications were not heard and determined on merit therefore this application cannot be termed as res judicata.

The application is opposed vide the replying affidavit of James Karanja Mwangi sworn on 10th September, 2014. He contended that the respondent changed his advocates vide notice of change of advocates filed on 23rd February, 2010 but the same was served on him on 19th July, 2012. That there was no indication that he would be acting for the respondent alongside Wafula Simiyu & Company Advocates. He contended further that this application is res judicata and the respondent should either apply to have it set aside or appeal against the order of 7th September, 2012 dismissing her earlier application. The applicant submitted that the respondent has not given notice to the taxing master on the items she objects to in the bill of costs pursuant to Rule II (1) and (2) of the Remuneration Order. He urged that the mandatory requirement must be satisfied before filing an application to set aside the certificate of taxation. He relied in the case of Wanga & Company Advocates v. Busia Company Ltd (2004) 1KLR 206andIndustrial & Commercial Development Corporation v. Otachi (1977) KLR 101. Where the courts held the position that until a notice as per Rule II (1) and (2) of the Remuneration Order is given to the taxing master, the High Court lacks jurisdiction to set aside a certificate of costs.

This is the third time the respondent is filing a similar application. The ones dated 7th September, 2012 and 22nd March, 2013 were dismissed for want of prosecution. The respondent failed to disclose that there was an application dated 22nd March, 2013 which was also dismissed and only mentioned it in her submissions. I find her to lack diligence.

I have considered the affidavits on record, the written submissions and authorities cited and find that the following issues fall for determination:

Whether or not this application is correctly before this court.

If (a) above is answered in the affirmative, whether or not the respondent has established good grounds for setting aside the certificate of costs.

The provisions as to the time for filing of a reference are found in Rule 11 of the Advocates Remuneration Order. It provides:

“(1) should any party object to the decision of the taxing officer, he may within fourteen 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 his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting to the grounds of his objection.”

It is clear from the aforegoing that the respondent ought to have written to the taxing officer requesting for written reasons for his decision before filing this application. No such letter has been exhibited by the respondent. I hold the same opinion as those held in Wanga & Company Advocatesand Industrial & Commercial Development Corporation(supra). In the circumstances I find and hold that this application is premature and this court has no jurisdiction to entertain it. It is accordingly struck out. Costs shall be in the cause.

Dated, Signed and delivered in open court this 14th of November, 2014.

J.K.SERGON

JUDGE

In the presence of:

………………………………………………………………for the Applicant

................................................................................................for the Respondent