[2017] KEHC 10021 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 303 OF 2015

JANE GATHONI MUNENE……………………..…..…………………….1ST PLAINTIFF

JOAN MUGURE MUNENE………………………………………………2ND PLAINTIFF

VERSUS –

GATHERU GATHEMIA T/A

GATHERU GATHEMIA & CO. …………......................................................DEFENDANT

AND

JUDY THONGORI & CO. ADVOCATES……….…...INTENDED INTERESTED PARTY

RULING

1. By an application dated 29th June 2015 the plaintiffs sought interlocutory injunctions to restrain the defendants from removing money from a bank account at Equity Bank.

2. Secondly, the plaintiffs asked for an order to compel the defendants to furnish security, in the form of funds, which will be sufficient to satisfy the Decree which may be passed against the defendants.

3. Thirdly, the plaintiffs asked the court to enter judgement in their favour, for the sum of Kshs. 83,421,858/-. The basis of that application is that the defendants had admitted owing the said sum to the plaintiffs.

4. In the face of the application, the defendants lodged a Preliminary Objection, which was in the following terms;

“1. The suit herein is misconceived and bad in law.

2. The Honourable Court lacks jurisdiction to grant the orders sought.

3. The application and suit are meant to circumvent the process of taxation contemplated under the Advocates Remuneration Order.

4. The application and suit offend the provisions of the Advocates Act as read together with Part X of the Advocates Remuneration Order.

5. The Applicant is guilty of material non disclosure.

6. The Application is an abuse of the court process?.

5. When canvassing the Preliminary Objection, Miss Odula, the learned advocate for the defendants submitted that the court lacked jurisdiction because the issues raised relate to taxed costs, which fall under the Taxing Officer.

6. The court’s attention was drawn to paragraphs 9 to 12 of the Plaint, as well as to the reliefs sought. In the understanding of the defendants, the plaintiffs were asking the court to review the services which he had allegedly provided to the defendants, so that the court could then verify the sums payable to the plaintiffs.

7. The defendants submitted that the process through which the court would ascertain the sums payable to the plaintiffs, is one which should be undertaken by the Taxing Officer.

8. On his part, Mr. Kanjama, the learned advocate for the plaintiffs submitted that in this case the parties had Fee Agreements, which were in the form of the Feenotes which the plaintiff presented to the defendants.

9. The said feenotes were dated 4th April 2011 and 23rd April 2012.

10. It is those feenotes which the advocate was seeking to enforce, through this case.

11. The plaintiffs noted that although the feenotes dated back to 2011 and 2012, it was not until 2015 when the defendants filed an application for accounts.

12. It is the plaintiff’s case that by the time when the defendants applied for the provision of an account by the plaintiff, the time stipulated for that kind of relief had long lapsed.

13. On the other hand, the defendants dispute the contention that there was any Fee Agreement between them and the plaintiff.

14. Secondly, the defendants assert, in their Amended Statement of Defence, that the plaintiff had expressly undertaken to charge fees in accordance with the Scale Fees as regulated by the Advocates Remuneration Order.

15. Therefore, when the plaintiff later provided feenotes which he said were in accordance with the Advocates Remuneration Order, the defendants signed the same.

16. However, the defendants case is that the fee charged by the plaintiff was exorbitant and not commensurate to the services rendered by the plaintiff.

17. It is obvious that the parties are not in agreement on the facts. Therefore, the preliminary objection is based upon disputed facts.

18. It has been long settled that when a party wishes to raise a preliminary objection, the same must be founded upon facts which were agreed upon, or the party raising the objection should do so on the understanding that he accepts the facts stated by the other party.

19. Preliminary Objections are matters of law.

20. Therefore, when parties were not agreed on facts, and when the party raising the objection does not accept the facts stated by the other party, a preliminary objection cannot lie.

21. When there are facts which are disputed, the court can only determine the case after making findings, based on evidence.

22. In this case, if I were to accept the defendants’ submissions, I would first have to hold that there were no Fee Agreements between the parties. Yet, that is the very basis of the plaintiff’s suit; that there were fee agreements.

23. The parties will need to lead evidence on the issue as to whether or not there exist any valid Agreements on fees.

24. Evidence would also need to be led on the question as to whether or not the defendants were misled by the plaintiff, into believing that the feenotes were raised on the basis of the scale provided in the Advocates Remuneration Order.

25. Thirdly, there is the question as to whether or not the defendants were time-barred from challenging the feenotes, because they did not, (allegedly) comply with Section 45 (2) as read with Section 2A of the Advocates Act.

26. In the result, there is no merit in the Preliminary Objection. It is therefore overruled.

27. The defendants will pay to the plaintiff, the costs of the preliminary objection.

DATED, SIGNED and DELIVERED at NAIROBI this11th dayof October2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Anyona for Kanjama for the Plaintiff

Miss Muhoro for Miss Odala for the Defendant

No appearance for the Intended Interested Party.