[2022] KEHC 3304 (KLR)

Joseph K. Sangok P/A Nyaundi Tuitott & Company Advocates v Madison Insurance Company Limited (Civil Miscellaneous Application 165 of 2020 & Miscellaneous Application 65 of 2002 & Civil Case 165 of 2019 & 5 & 6 of 2020 (Consolidated)) [2022] KEHC 3304 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3304 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Miscellaneous Application 165 of 2020 & Miscellaneous Application 65 of 2002 & Civil Case 165 of 2019 & 5 & 6 of 2020 (Consolidated)

REA Ougo, J

June 9, 2022

IN THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF ADVOCATE- CLIENT BILL OF COSTS

Between

Joseph K. Sangok P/A Nyaundi Tuitott & Company Advocates

Respondent

and

Madison Insurance Company Limited

Applicant

Ruling

1. The respondent has filed Chamber Summons dated July 19, 2021 seeking the following orders:a)The Ruling of the Deputy Registrar dismissing the application by the client/applicant dated 4. 3.2021, be set aside, varied and/or be vacated.b)The Honourable Judge be pleased to order that the application dated March 4, 2021 was neither res-judicata nor an abuse of the process of the court.c)The Honourable Judge be pleased to order that the application dated March 4, 2021 be heard and determined on its merits by the Deputy Registrar or otherwise as the court may order.d)The costs of this reference be paid to the client/respondent.

2. The application is premised on the grounds on the face of the application and the affidavit sworn by Peter M. Karanja. A brief background to the application is that the advocate/respondent filed a bill of cost dated December 13, 2019. Following the application, the client/applicant filed a preliminary objection dated January 28, 2020 on the grounds that the bill was statutorily time barred and that it was also incompetent for lack of any Advocate-Client relationship between the Advocate and the client. The preliminary objection was heard and the Deputy Registrar in her ruling dated November 6, 2020 dismissed the preliminary objection having found that it was premised on facts and that it failed to meet the threshold of a preliminary objection.

3. Following the dismissal of the preliminary objection, the client/applicant filed a substantive Notice of Motion dated March 4, 2021 seeking to have the bill of costs dated December 13, 2019 struck out. The application was on grounds that the advocate-client bill is statutorily time barred under section 4 (1) of the Limitation of Actions Act. The applicant also asserted that there was no retainer between the advocate and the applicant. The application was opposed by the advocate/respondent who argued that the application was spent following the earlier dismissal of the preliminary objection and that the court was functus officio.

4. The application is opposed by the respondent/advocate. In the replying affidavit dated July 30, 2020 deposed by Sarah Wanjiku Karuga it was averred that the application is frivolous, baseless and does not disclose any reasonable ground for the court to grant the orders sought. They support the finding by the Taxing Officer that the application dated March 4, 2021 was res judicata. According to the respondent the current application is aimed at frustrating the respondents and further delaying taxation process and denying the respondent from enjoying the fruits of services offered.

5. In her ruling of July 8, 2021, the Taxing Officer held that the matter was res judicata and that the court was functus officio.

6. At the hearing of this instant application, parties were directed to file their written submissions and both parties have complied.

7. The client/applicant in its submissions argued that the dismissal of the preliminary objection did not result into a hearing and final determination of the issues raised in the preliminary objection. It is argued that the court did not make a determination on the issue of the retainer or limitation of time. The Notice of Motion dated March 4, 2021 thus ought to have been considered on its merits. The applicant in his submissions argued that the Notice of Motion dated March 4, 2021 was not res judicata the applicant relied on the decision of Accredo AG & 3others v Steffano Ucelli & another [2019] eKLR; Salama Beach Hotel Limited & 3others v Christopher Orina Kenyariri t/a Kenyariri and Associates Advocates[2019] eKLR and Musa Wambugu John v Miriam Njoki Gitonga &another[2021] eKLR.

8. The advocate/respondent on the other hand submitted that the test for determining res judicata was spelt in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5others[2017] eKLR. It was submitted that was clear from the face of the preliminary objection and the application that the issues were similar.

9. Although the Taxing Officer casually dismissed the notice of motion dated March 4, 2021 on grounds of res judicata, I find that the issues raised in the preliminary objection had not been definitively determined. The issue of res judicatadid not therefore arise.

Analysis and Determination 10. The application before me now challenges the later decision by the Taxing Officer dated July 8, 2021dismissing the application dated March 4, 2021. The application before this court has been brought under Rule 11 (2) of the Advocates Remuneration Order. Paragraph 11 of the Advocates Remuneration Order provides as follows:11. Objection to decision on taxation and appeal to Court of Appeal.(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 out the grounds of his objection.

11. My understanding of paragraph 11 (1) and (2) of the Advocates Remuneration Order is that applications made before this court by way of Chamber Summons challenging a Taxing Officer’s decision shall contain items of taxation to which the applicant objects to. In this case it is not in dispute that the bill of costs was not taxed, therefore the application before me is thus incompetent. A similar finding was made by Waweru J inAbincha & Co Advocates v Trident Insurance Co Ltd [2013] eKLR where he held as follows:“Is the present applications (chamber summons dated September 19, 2012) the proper way of challenging the decision of the Deputy Registrar/Taxing Officer of 10th August 2012? 21. As there was no taxation, there was nothing to challenge under paragraph 11 of the Advocates (Remuneration) Order. The decision challenged in the present application was not a decision on taxation. The present application is thus incompetent.”

12. The application before the court does not fall within the provisions of paragraph 11 of the Advocates Remuneration Order. However, I do note that the Taxing Officer failed to consider the two pertinent issues that were raised in the preliminary objection and the notice of motion. In my view, the matters raised are not res judicata as since the Taxing Officer is yet to make a determination on the issues. One of the most crucial issues that had been raised in the application was the jurisdiction of the Taxing Officer, the client applicant having claimed that there was no retainer between the advocate and client. In Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited[2017] eKLR the court of Appeal held as follows:“The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Officer by law. It is derived from the Advocates Act and the Advocates Remuneration Order. The Taxing Officer sits in taxation as a Judicial Officer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn v Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered.The nexus between the advocate and his or her client is the advocate/client relationship which springs from instructions by the client to the advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill.As a Judicial Officer sitting to tax a bill of costs between an advocate and his or her client, a taxing officer must determine the question whether he/she has jurisdiction to tax a Bill if the issue of want of advocate/client relationship is raised. An allegation that the advocate/client relationship does not obtain in taxation of an advocate/client Bill of Costs must be determined at once. The Taxing Officer has jurisdiction to determine that question. A decision in taxation where an advocate/client relationship does not exist is a nullity for want of jurisdiction.”

13. However, all is not lost for the client/applicant as the issues are also raised in his reply to the bill of costs that are yet to be heard and determined. The Taxing Officer before taxation will have to consider whether an advocate-client relationship existed between the parties in order to determine whether she has jurisdiction. I therefore decline to render my decision on the issues raised for reasons that the application before me is incompetent; and secondly that the issues ought to be considered by the Taxing Officer having been raised by the client/applicant in its reply to the bill of costs.

14. In the end, the application is dismissed with no orders as to costs.

15. This Ruling appies to all the matters related to this Misc. Application number.

DATED, SIGNED AND DELIVERED AT KISII THIS 9THDAY OF JUNE 2022. R. E. OUGOJUDGEIn the presence of:Mr. Karanja For the ApplicantRespondent AbsentMs. Aphline C/AHC MISC CIV CASE NO 5 OF 2020 - RULING 0