[2017] KEHC 3070 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 46 OF 2015

IN THE MATTER OF THE ADVOCATES ACT

AND

IN THE MATTER OF TAXATION OF BILL OF COST

BETWEEN

ABUODHA & OMINO ADVOCATES…APPLICANT/RESPONDENT

VERSUS

KAKUTA MAIMAI HAMISI….………. RESPONDENT/APPLICANT

AND

IN THE MATTER OF THE ELECTION PARLIAMENTARY & COUNTY ELECTIONS PETITION RULES

AND

IN THE NAIROBI ELECTION PETITION NO. 5 OF 2013

BETWEEN

KAKUTA MAIMAI HAMISE………………..…........…………… APPELLANT

AND

PERIS PESI TOBIKO…………………………………… 1ST RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARY COMMISSION..…….………….....……….2ND RESPONDENT

RETURNING OFFICER KAJIADO

EAST CONSTITUENCY..………………….…....………..3RD RESPONDENT

RULING

1. The genesis of these proceedings was the filing of the advocate/client bill of costs by the applicant herein (hereinafter referred to as “the advocate”) on 8th August, 2015 dated 8th October, 2015. In the said bill the advocate sought taxation of his costs arising from services rendered in High Court Petition No.5 of 2013 (hereinafter referred to as “the petition”).

2. Irked by the same, the Respondent herein (hereinafter referred to as “the client”) filed a Notice of Motion dated 22nd February, 2016 seeking the following substantive orders:

(1) A declaration that the Advocate fees having been agreed upon and paid, the Respondent Advocate was not in law entitled to subject the matter to the taxation of the Advocate-Client Bill of Costs as that would not only violate the provisions of Section 45(6) of the Advocates Act Cap. 16 Laws of Kenya, but would be harsh, unconscionable and in all counts an act of illegality, null and void ab initio.

(2) That accordingly arising from the above, the Advocate-Client Bill of costs dated the 8th day of October, 2015 and filed the same day was a product of an illegality, null and void ab initio, ultra-vires the Advocate Act Cap. 16 Laws of Kenya and was therefore for striking out without much ado and accordingly such orders to issue.

(3) Thatcosts of the application be paid by the Respondent Advocate.

3. According to the client, before the filing of High Court Petition No.5 of 2013 the client agreed with the advocate Franklin Omino Isaiah Advocate of the firm of Abuodha & Omino Advocates for an all-inclusive sum of Kshs1. 4million being the legal fees inclusive of disbursements, attendance and court fees for the above matter. Despite that, the lawyers continued to ask for payments in various forms like filing charges, court attendances all which amounted to the sum of Kshs. 2,188,000/= being the legal fees of the Election Petition to the end and in that regard the Advocate did the letters dated the 20th day of June, 2013 and the 22nd day of July, 2013 to the Client.

4. It as however the Client’s case that the legal effect of the said agreement was that the Advocate’s fees had been agreed and capped in compliance with section 45(6) of the Advocate ActCap. 16 Laws of Kenya which agreement remained and was not varied or set aside in any manner.

5. The Client however averred that despite having received his full fees the Advocate and without his knowledge, consent and/or authority and in a sense to back stab him and taking advantage of the his absence in the Country went ahead and collected funds belonging specifically to the Client having been ordered to be paid and/or refunded through the court orders in the Court of Appeal judgement in the Civil Appeal No. 239 of 2013 - Kakuta Maimai Hamisi –vs- Peris Pesi Tobiko & 2 Othersin a judgement rendered on the 10th day of March, 2014 which had ordered that payment of Kshs. 2 Million to the Client and for the release of the deposit for security of costs that he paid in to court in the sum of Kshs. 500,000/=.

6. The Client accused the advocate of grave illegality and professional misconduct in that the Advocate went ahead and without any authority or cause, collected the sum of Kshs. 2 Million from IEBC and the sum of Kshs. 500,000/= from the Judiciary. Particularly, with respect to the sum of Kshs. 500,000/= it was averred that the Advocate authorised other lawyers to collect it without the Client’s knowledge and/or consent.

7. The Client lamented that his efforts to access the file was frustrated and/or “stonewalled’’ with the consequence that the Advocate/Client communication irretrievably broke down but overall the Advocate’s behaviour veered towards a fraudulent, criminal and unethical conduct and in total amounted to an act of professional misconduct, the consequence of which is that other proceedings have been lodged before the Law Society of Kenya and the Advocates Complaints Commission for further investigation and action.

8. The Client based his case on section 45(6) of theAdvocates Act which provides that the costs of an advocate in any case where an agreement has been made with respect to the remuneration of an Advocate is not subject to taxation. In this case the Client averred that the Advocate fees was agreed and put in writing by the Advocate; that the client made those payments; that behind the back of the client, the Advocate went ahead and signed out the Kshs. 500,000. 00 client’s security for costs in the Election Petition; and that without the Client’s consent, knowledge and/or authority, the Advocate collected Kshs. 2 Million belonging to the client and without battling an eyelid denied ever collecting the same. However when confronted by the client with receipts showing the amount collected and date of collection, the Advocate filed Advocate-Client Bill of Costs and intends to subject them to taxation.

9. According to the Client this action was not only illegal but ultra vires the Advocate Act and the provisions of the law and quite clearly an illegality. The Court was therefore urged not to countenance and be party to an illegality hence the said bill of costs ought to be struck out.

10. In response to the application the Advocate averred that the application is made without basic knowledge of issues relating to advocates client agreement on fees, costs and the advocates right of lien over the defaulting clients property as contained in the law both in the statutory provisions and the court authorities. In his view, the Client has failed miserably to display and explain any agreement reached in terms of fees payable for acting in Election Petition No. 5 of 2013 or reveal any that conforms to the provisions of the Advocates Act as prescribed thereunder.

11. According to the Advocate, section 45 of the Advocates Act is succinct clear and not ambiguous in any way whatsoever, as it states clearly that fees agreement is only reachable by way of an agreement duly signed between the advocate and the client. In this case, it was contended that the Client relies on the fee note dated 20th June, 2013 as the agreement, yet this fee note does not constitute an agreement for two reasons: Firstly, that the same is not an agreement within the meaning of section 45 of the Advocates Act nevertheless proper fee note was done and given to the client; secondly, the same was not properly drafted owing to the fact that it left out waking up fees which constitute large amount of money as a part of the fees due to the advocate but the Advocate’s staff released it to the client in his absence.

12. According to the Advocate, the fee note is not an agreement and bearing in mind that an election petition is not a matter in which parties would determine the nature, character and the applications to be dealt with no advocate can fix the fees payable. To him, when the court has made a determination of cost in any proceedings, the advocate cost shall be the cost awarded increased by ½ in this case his fees should have been the cost awarded which was Kshs. 2 million increased by ½ which is 1 million which brings the fee payable to Kshs. 3 million only. He therefore contended that no fee agreement that is below the scale is attainable. In this respect the Advocate relied on section 36 of the Advocates Act and asserted that his fees in this matter is Kshs. 3 million which the applicant should settle immediately without fail.

13. The Advocate averred that the accusation that he retained the cost of Kshs. 2 million paid by IEBC does not stand at all because the law is clear as to payment of cost and that under the circumstances of this case such cost were properly paid to the advocate. It was revealed that the Client herein had intended to source the cost directly from M/s IEBC using another lawyer Orengo & Co. Advocates who did not act in this matter at all.

14. It was contended that the receipts annexed to the application herein clearly indicates for what each amount is paid for and the applicant for all purposes and intent knew very well that what he had paid was way below the Advocates fees which does not include amounts expended on filing fees, photocopies, advertisements and many other things involved in an election petition.

15. The Advocate averred that the fee discussed with the applicant was Kshs. 4 million for election petition No. 5 of 2013 which was clearly agreed on when State House intervened petitioned and prevailed upon the Client to withdraw the petition. It was disclosed that other than the Election Petition Number 5 of 2013, the Advocate acted for the Client in other 5 matters all of which arose from the same Election Petition No. 5 of 2013 and in which there is fee outstanding.

16. It was averred that the applicant thereafter proceeded to the police, Law Society and even to the banking fraud using his political muscle to intimidate and force the Advocate into obliging into his mischief and intention to fraudulently deny the Advocate his fees.

17. The Advocate asserted that since he did not sign any agreement on fees, it is the Court’s decision on the same that would prevail. He therefore contended that insinuations of illegality and all the rest are side shows and unwarranted and the application herein should be dismissed to pave way for the taxation of bill of cost. He asserted that as advocates acting in this matter he has right of lien over all documents materials and any money pending settlement of our fees. To him, the alleged issue of illegality and lack of jurisdiction are highly misplaced and misconceived in this matter and are meant to delay fair and faster disposal of the advocates taxation of his bills of cost in this matter.

18. In a rejoinder the Client stated that in the letter dated the 20th day of June, 2013, the advocate expressly stated he was enclosing the fee note “for acting for you to the end of the matter.” The Client relied on the definition of “agreement” byBlacksLaw dictionary, as:

Accord ofunderstandingand intention, between two or more parties, with respect to the effect upon theirrelative rights and duties, of certain past or future facts or performances.

19. According to the Client, in the instant case the advocate on his own volition without any coercions whatsoever and out of his own free will came up with this fee note as one that would be final to the end of the case and as such he is estopped from claiming the absence of that agreement and/or from claiming any such money beyond what he wrote as shown in his own hand and having been paid in full, the provisions of section 45(6) of the Advocates Act thus come into play.

20. Based on Central London Property Trust Ltd., v High Trees Ltd.And(1947) K.B.130 and Serah Njeri Mwobi –vs- John Kimani Njoroge – Civil Appeal No. 314of2009, it was argued that the Advocate is estopped from taxing his costs.

21. It was therefore argued that that the Advocate cannot turn around and say there was no agreement signed. The advocate raised a fee note and in his own words to the end of the case and that document from the advocate perfectly fits the definition of an agreement.

Determinations

22. I have considered the issues raised herein.

23. I must say from the outset that the parties herein particularly the Client herein unprocedurally set out to adumbrate non-factual issues in his affidavits. These are the kinds of affidavits that Kuloba, J had in mind in Adam & 6 Othersvs. Alexander & 2 Others Meru HCCC No. 81of1993 [1993] KLR 446 where he expressed himself as follows:

“In great measure they are seriously faulty. They were in many respects argumentative, expressive of legal conclusions and opinions, surmises and doctrinal assertions; broad accusations and defences; statements of rules and assertions of their breach without supportive factual data. Affidavits must deal only with facts which the deponents can prove of their own knowledge…An affidavit is not a platform for dissemination of philosophical ideals, for the exposition of ideals, the propagation of opinions, dogmatic assertions, heightened counsel and soothsaying prophesy. It is not a medium for testing inter-religious doctrinal animosity. It is not a dissertation on the Constitution, and it is not a discourse on the law. It is to be confined to facts as the deponent is able of his own knowledge to prove…”

24. In this case the affidavits in question contained questions rather than factual matters. As held by the Court of Appeal in Pattni vs. Ali and Others [2005] 1 EA 339;[2005] 1 KLR 269:

“an affidavit is a sworn testimony on facts and as such the provisions of the Evidence Act have been applied to affidavits and therefore rules of admissibility and relevancy apply. Hearsay evidence and legal opinions are for exclusion… Where the portions complained of are fraught with argumentative propositions and expressions of opinion, it would be oppressive to allow such matters to masquerade as factual depositions and since Order 17 rule 6 donate the power to strike out scandalous, irrelevant or oppressive matter and as the three categories are to be read disjunctively the said portions are struck out”.

25. To my mind parties and counsel ought not to turn affidavits, which is evidence and which ought to be restricted to factual matters, to submissions on points of law. Where a party relies on both facts and law, facts ought to be contained in an affidavit while legal issues ought to be in grounds of opposition. Submissions on points of law which are disguised as factual averments contained in affidavits, unless sworn by legal experts deposing to matters relating to their knowledge of the law run the risk of being struck out. See Muslim Mohamed Jaffer Abdulla Kanji T/A Airoquip and Applications vs. Agriquip Agencies (EA) Ltd Civil Appeal No. 55 of 1982 1 KAR 245; [1976-1985] EA 154.

26. I have also considered the language employed particularly by the Client in his affidavits and I must say that the language has no place in affidavit which ought to be factual. When a party resorts to referring to other parties in the proceedings as thieves, such language can only be termed as reckless. A party ought not to use legal proceedings as a platform of idiosyncrasy to unleash vituperative remarks. For example terming the conduct of a party to the suit as veering towards a fraudulent, criminal direction not only amounts to a conclusion but is also scandalous.

27. In my view the determination of this matter revolves around the application of the provisions of section 45 of the Advocates Act to the fact of this case. The said section provides as hereunder:

(1) Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may-

(a) before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;

(b) before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;

(c) before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf”.

……..

(6)Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

28. The issue of validity of agreements between advocates and clients with respect to remuneration was dealt with by Ochieng, J in Ahmednasir Abdikadir & Co. Advocatesvs. National BankofKenya Limited (2) [2006] 1 EA 5 in which the learned Judge held that reading of section 45(1) of the Advocates Act reveals that the agreements in respect of remuneration would be valid and binding on the parties thereto provided that the agreements were in writing and signed by the client or his agent duly authorised in that behalf. The Court proceeded to hold that an agreement that provides for fees, which was less than the fees provided for in the Remuneration Order was illegal.

29. In this case what the Client contends constitutes an agreement were the letters dated 20th day of June, 2013 and the 22nd day of July, 2013 to him by the Advocate. In the letter dated 20th June, 2013, the Advocate stated inter alia as follows:

“…we believe we are now nearing the end of this exercise and we now wish to notify you what our final fee note is likely to be......... Kindly therefore find herein enclosed the fee note for acting for you to the end of the matter........”

30. The question is whether the used the phrase “our final fee-note is likely to be” amounts to unequivocal statement of the exact fee that the Client is bound to pay. To constitute a valid and binding agreement for the purposes of section 45 of the Advocates Act, it is expressly provides that the same must be in writing and signed by the client or his agent duly authorized in that behalf. In this case both the two letters are not signed by the Client. Whereas an agreement may be formed by a series of correspondences, the Client has not exhibited any document by which he signalled his acceptance of the proposed fees by the Advocate. In my view for a document to be said to constitute a valid and binding agreement for the purposes of section 45 of the Advocates Act, the same must not only be unequivocal that it signifies what the precise final amount is but must be signed by the person to be charged who in this case is the Client. This was the position adopted by Tanui, J in Rajni. K.Somaiavs. Cannon Assurance (K) Ltd Kisumu HCMA No. 289of2003

31. In this case the documents relied upon I am afraid do not meet the threshold for a validly binding agreement so as to bar the Advocate from taxing his costs more so as there is no evidence that the Client accepted the proposal by the Advocate even if it were to be found that the letter dated 20th June, 2013 was a proposal on the final fee. An agreement must contain both an offer and acceptance and where one condition is not satisfied there is no binding agreement.

32. There being no validly binding agreement as contemplated by the law, the Advocate was perfectly entitled to file his bill for taxation.

33. In the result the Notice of Motion dated 22nd February, 2016 fails and is dismissed but in light of my finding on the defects in affidavits by both the parties, there will be no order as to costs.

34. Orders accordingly.

Dated at Nairobi this 9th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Omino for the Advocate/Respondent

Miss Nasanga for Mr Arusei for the Client/Applicant

CA Ooko