[2023] KEHC 26373 (KLR)

Kimani t/a AM Kimani & Co Advocates v Kenindia Assurance Co Ltd (Civil Appeal 321 of 2014) [2023] KEHC 26373 (KLR) (Civ) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26373 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 321 of 2014

AN Ongeri, J

December 7, 2023

Between

Alice Mugure Kimani t/a AM Kimani & Co Advocates

Appellant

and

Kenindia Assurance Co Ltd

Respondent

(Being an appeal from the judgment and decree of Hon. Chesang (SRM) in Milimani CMCC No. 4671 of 2013 delivered on 09/07/2014)

Judgment

1. The appellant Alice Mugure Kimani filed Milimani CMCC No. 4671 of 2013 against the respondent Kenindia Assurance Ltd seeking kshs.25,026 in respect of legal services offered to the respondent in Gatundu CMCC No. 545 of 2013.

2. The trial court found that the appellant filed a bill of costs for taxation and the same was taxed at kssh.38,375.

3. The kshs.25,026 was in respect of interest.

4. The trial court found that interest is awarded at the discretion of the court and the appellant’s claim was dismissed with costs.

5. The appellant has filed this appeal on the following grounds;i.That the trial magistrate erred in law and facts in dismissing the suit on the basis that the court did to have jurisdiction to entertain the suit.ii.That the trial magistrate erred in law in holding that it was only the Taxing Officer who had jurisdiction to determine the matter.iii.That the trial magistrate erred in law in holding that the suit had been instituted through the wrong procedure.iv.That the trial magistrate erred in law and considered irrelevant facts in dismissing the suit.

6. The parties filed written submissions as follows; the appellant submitted that they filed the lower court suit CMCC No. 4617 of 2013 at the Chief Magistrates Milimani Commercial Court seeking to recover their taxed costs and interest under the provisions of section 48 of the Advocates Act. Prior to filing the suit, the bill of costs was taxed at Kshs. 38,375 in Misc cause No. 427 of 2012 at the high Court Milimani and a certificate had been issued.

7. What was before the lower court were recovery proceedings for taxed costs and interest and not taxation of their bill of costs and the court delved into error when it held that it did not have jurisdiction to entertain the claim yet section 48(2) of the advocates Act states that a suit for recovery of costs could be filed in any court of competent jurisdiction.

8. On the jurisdiction of the Taxing Officer the appellants submitted that order 10 of the advocates remuneration order provides;Taxing officerThe taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.

9. That further, rule 13A of the Advocates Remuneration Order provides;Powers of taxing officerFor the purpose of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.

10. It was submitted that it is clear therefore that a taxing officer is only mandated to tax a bill of cost and once a bill of cost is taxed the taxing officer becomes functus officio and this paves way for the advocate to move to court of competent jurisdiction to recover the costs as taxed by having judgement entered on the certificate of costs and thereafter seeking interest to accrue on the taxed amount as provided for under Section 51 of the Advocates Act.

11. The appellant maintained that the court erred when it raised the issue of jurisdiction and yet the defendants in its submissions had admitted the jurisdiction of the court to entertain the suit. The issue of jurisdiction was raised through the back door by the respondent filing further submissions without the leave of the court which the lower court relied on in arriving at its decision. It was irregular and unlawful for the court to consider the respondent’s further submission and make a decision on a matter that was a non-issue right from the start. The respondent was bound by its pleadings and submissions filed in court dated 29/7/2014.

12. The appellant argued further that the court erred when it held that it could not address itself on their claim for interest as the same was res judicata. The appellant contended that the courts finding was misplaced as the issue of res judicata had not been pleaded and neither was there any evidence tendered by the defendant to show that the interest sought was subject of any litigation in a previous suit and that the issue had been fully adjudicated.

13. The respondents conversely submitted that the trial court had no jurisdiction to tax the bill of costs or entertain the claim for the award of interest by the appellant arising from the bill of costs.

14. In support the respondent cited Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR where the Court stated as follows- "The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on 25th November 2012. "

15. The respondent submitted that the appellants claim in the lower court is based on assessment of interest to be awarded which is grounded on paragraph 7 of the Advocates Remuneration Order hence it is a taxation matter as opposed to a matter for recovery of costs.

16. Further, that the issue of awarding of interest is at the court’s taxing master’s discretion. This matter therefore ought to have been raised with the taxing master or file a reference on the decision of the taxing master within 14 days if aggrieved by the decision of the taxing master.

17. The respondent indicated that its argument is based on section 48 of the Advocates Act which provides that 48. Action for recovery of costs(1)Subject to this Act, no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs, which may be in summarized form, signed by the advocate or a partner in his firm, has been delivered or sent by registered post to the client, unless there is reasonable cause to be verified by affidavit filed with the plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local limits of the Court's jurisdiction, in which event action may be commenced before expiry of the period of one month.(2)Subject to subsection (1), a suit may be brought for the recovery of costs due to an advocate in any court of competent jurisdiction.(3)Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs has been filed.

18. The respondent contended that the trial magistrate considered the submissions and rightly found that this was a claim for interest on a bill of costs that was taxed.

19. She noted that the substantive issue of the amount payable was litigated upon and finalized. That consequently a suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and rightly dismissed it.

20. This being the first appellate court, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the findings of the trial court.

21. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment), the court stated as follows;“A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons”.

22. The issues for determination in this appeal are as follows;i.Whether the trial court was right in dismissing the appellant’s claim.ii.Whether the trial court had jurisdiction to entertain the appellant’s claim.

23. On the issue as to whether the trial court was right in dismissing the appellant’s case, I find that the trial court held that it did not have the jurisdiction to hear the matter and further that the same ought to have been before the Deputy Registrar of the High Court.

24. The Trial court further held that the claim was in respect of interest only which is discretionary.

25. In the case of Corporate Insurance Company Limited v Kang’ethe and Mola Advocates [2021] eKLR it was held as follows on the issue of any outstanding interest owing to the Advocate from the client;“…If there is any outstanding interest, the Advocates are entitled to claim it through a suit for recovery.”

26. I find that the Appellant was entitled to file suit to recover the interest in respect of the fee note owing from the client.

27. I find that the trial court had the jurisdiction to entertain the suit.

28. The appeal herein has merit and the same is allowed. The judgment and Decree dated 22/7/2014 be and is hereby set aside.

29. Judgment be and is hereby entered in favor of the Appellant against the Respondent in the sum of Kshs. 25,026 plus costs and interest from 19/6/2013 until payment in full.

30. The Respondent to pay the costs of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. .................................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent