[2020] KEELRC 233 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

MISC. APPLICATION NO. 58 OF 2020

J.M. NJENGA & CO ADVOCATES............................APPLICANT

VERSUS

1. MONICA WAMBUI KAMAU

2. ZACHARIA NJENGA

3. JOSEPH NYINGI KAMAU (Suing in their

capacity as administrators of the Estate of

JAMES KAMAU THIONG’O alias

KAMAU THIONG’O (Deceased)

4. JACOB KAMAU KAHIU..................................RESPONDENTS

RULING

1. By a Notice of Motion dated 30th July, 2020 made under Sections 2 and 50 (1) of the Advocates Act (Cap 16) and Order 51 Rule 1 of the Civil Procedure Rules, the Advocate/Applicant seeks for orders:

1. That Jacob Kamau Kahiu be deemed as a client in terms of the provisions of Section 2 of the Advocates Act for purposes of taxation of the subject bill of costs and therefore liable jointly and severally together with the 1st Respondents to satisfy whatever costs that shall be taxed and certified as due and payable to the advocate/applicant herein.

2. That consequent to granting prayer 1, the said Jacob Kamau Kahiu be enjoined and/or deemed as properly enjoined as a client/Respondent for purposes of taxation of the bill of costs herein.

2. The application is supported by the affidavit of Jeremy Njenga sworn on 30th July 2020 and is premised on the grounds that:

a. The instructions to the advocate/applicant to prosecute the suit in the parent file on behalf of the plaintiffs (1st Respondents herein) emanated from Jacob Kamau Kahiu and who undertook to pay the advocates (our) fees.

b. The said Jacab Kamau Kahiu in turn had an interest over the subject matter of the main suit property and he undertook to be part and parcel in settlement of the Advocate/applicant fees and was even given a power of attorney in respect of prosecution of the said main suit.

c. The said Jacob Kamau Kahiu has in fact in the past paid sum paltry disbursements and court fees to us thus for all intents and purposes, he is the client and/or one of the clients as defined under Section 2 of the Advocates Act and should thus be enjoined as a co-Respondent for purposes of taxation of the bill of costs herein.

d. The interests of justice dictate that the orders sought herein be granted as the advocate/applicant stands prejudiced if the orders sought are not granted.

3. In his affidavit, Mr. Jeremy Njenga deposes that the Advocate/applicant herein received instructions jointly from the 1st Respondents herein and the intended 2nd Respondent as he (2nd Respondent) had an interest in the subject suit. He deposes that they started acting for the 1st repondnent in the parent file, Mombas ELC 161 of 2013 Monica Wambui & Another versus Golden Sparrow Trading Ltd and 3 Others courtesy of the intended 2nd Respondent herein, Jacob Kamau Kahiu as the said 1st Respondents who were plaintiffs in the parent matter did not have any funds to meet the applicant’s fees while the intended 2nd Respondent had an interest in the suit property in the parent file, MN/VI/755. That in fact the 2nd Respondent made to the applicant the initial fees deposit of Kshs.250,000/=. A copy of the cheque has been annexed. That to cement the commitment to settle the applicant’s fees in the matter, a formal agreement was reached between the applicant and the said intended 2nd Respondent. A copy of the document is also annexed. The applicant have also annexed copies of Memorandum of Understanding and power of attorney between the said Jacob Kamau Kahiu and the 1st Respondents herein and which is said obligated him among other tasks to cater for legal costs in prosecuting among other matters, the parent matter giving rise to the current bill of costs. It is deposed that thereafter, and after the applicant had significantly pursued the parent file and had prepared it for hearing, the advocate/client relationship irretrievably broke down on account of allegations made against the applicant by the said intended 2nd Respondent, leading to the applicant’s withdrawal from acting and subsequent filing of the bill of costs herein. Copies of the relevant correspondence are annexed. The applicant contends that for all intents and purposes, the intended 2nd Respondent is a client as defined under Section 2 of the Advocates Act and therefore jointly and severally liable together with the 1st Respondent to settle the applicant’s fees as shall be taxed by the court and should thus be enjoined as a Respondent herein or his inclusion as a Respondent validated.

4. On the hearing date, Mr. Wameyo appeared and stated that he was acting for the Respondent. Mr. Njenga for the applicant, however, insisted that the application was ex-parte.

5. I have considered the application. On 13th August, 2020, the applicant filed an Advocate/client bill of costs seeking to recover Kshs.46,742,169/= in costs from the 1st Respondent and the intended 2nd Respondent. It is not in dispute that the intended 2nd Respondent was not a party in the parent file ELC Case No.161 of 2013. The applicant contends that the 2nd intended Respondent had an interest in the suit property in the parent file, MN/VI/755 and had even made partial payment of fees of Kshs.250,000/= to the applicant. The applicant has also exhibited agreements allegedly entered between them and the intended 2nd Respondent.

6. Section 2 of the Advocates Act (Cap 16) defines a “client” to include-

“Any person who, as principal or on behalf of another, or a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs or is about to retain or employ, an advocate and any person who is or may be liable to pay an advocate any costs.”

7. In the case of Kamau Kuria & Company Advocates –v- Lucy Nyambura Kinyanjui & 2 Others (2019)eKLR, Muchelule, J stated:

“The basic principle is that under a contract of retainer only the client is liable to pay fees to an advocate whom he has retained, hired or employed. The 3rd Respondent retained the applicant to act for her in the Succession proceedings. The contract was directly between her and the applicant. She was under the contract obliged to pay the applicants’ fees unless there was a court order to the contrary. The applicants sought to rely on Section 50 of the Advocates Act to say that this was one of the circumstances under which the estate, and not the instructing client, was liable to pay. They relied also on the case of Roy Dean –v- Allin and Watts (A Firm) (2001) EWCA Civ. 758 to argue that the assumption of responsibility by an adviser (in that case a solicitor) may extend beyond the client to those whom the client intended to benefit; this leads to an implied retainer such as in this case where they assumed responsibility to ensure the due administration of the estate…..”

8. In this case, the applicant is also relying on Section 50 of the Advocates Act. Section 50 (1) provides as follows:

“(1) Where a person other than the person who is the party chargeable with a bill of costs is liable to pay the bill either to the advocate or to the party chargeable with the bill, or where a person is interested in any property in the hands or under the control of a trustee, executor, or administrator, out of which property the trustee, executor or administrator has paid or is liable to pay the bill, that person or his administrators, executors or assignees may apply to the court for an order for the taxation of the bill as if he were the party chargeable therewith, and the court, having regard to the extent and the nature of the interest of the person may make any order thereon which it would have been competent to make if the application had been made by that party:

Provided that no order for taxation of a bill shall be made under this section in may case where –

(i) The bill has previously been taxed; or

(ii) The application is made more than six months after the date on which the bill was rendered to the party chargeable therewith or three months after the date on which the bill was paid, or the date when the party making the application became entitled to do so, whichever is earliest.”

(2) If an applicant under subsection (1) pays or has paid any money to the advocate in respect of a bill of costs payable out of property in the hands or under the control, of a trustee, executor or administrator he shall have the same right to be paid that money by the trustee, executor or administrator chargeable with the bill as the advocate had.

(3) The court may, if it orders taxation of the bill under this Section, order the advocate to deliver to the applicant a copy of the bill upon payment of the costs of that copy.”

9. In Kamau Kuria & Company Advocates case (supra), Muchelule J further stated:

“My understanding of this section is that, if the 3rd Respondent sought that the applicants’ fees be borne by the estate she had to apply to the court for an order in that regard. Similarly, the applicants ought to have obtained an order in the succession cause that their costs be borne by the estate. (emphasis mine).”

10. The question then that arises is whether Section 50 is available to assist the applicant in the instant case who had not obtained an order of the court in the parent matter that they be paid costs by the intended 2nd Respondent. In my view, and being persuaded by the decision cited above, the applicant herein ought to have obtained an order in ELC Case No.161 of 2013 that their costs be borne by Jacob Kamau Kahiu, the intended 2nd Respondent. Further, the application herein seeks to have Jacob Kamau Kahiu enjoined and/or deemed as properly enjoined as a client/Respondent for purposes of taxation of the bill of costs herein. Again, my humble view, is that the application for joinder in the circumstance of this case ought to have been made in the parent matter in accordance with the provisions of Order 1 of the Civil Procedure Rules. Similarly, I am aware that under Section 27 of the Civil Procedure Act, the costs of and incidental to all suits is at the discretion of the court or judge and the court or judge has full power to determine by whom and out of what property and to what extent costs are to be paid, and to give necessary directions. I do not think that this court in exercising its jurisdiction over taxation is competent to deal with the matter and grant the orders sought.

11. In conclusion, therefore, I find that the application herein is improperly before this court. The same is struck out with no order as to costs.

DATED, SIGNED and DELIVERED at MOMBASA this 18th day of November, 2020

...............................

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant

C.K. YANO

JUDGE