[2009] KEHC 833 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

Miscellaneous Application 585 of 2008

IN THE MATTER OF THE ESTATE OF JACKSON KAMAU CHEGE (DECEASED)

IN THE MATTER OF A REFERENCE TO THE HIGH COURT OF THE TAXING

OFFICER’S DECISION (OF 24TH MARCH, 2009) OF THE ADVOCATES/CLIENTS

BILL OF COSTS DATED 6TH OCOTBER, 2008

IN THE MATTER OF THE ADVOCATE ACT, CHAPTER 16 OF THE LAWS OF KENYA

BETWEEN

KIPKORIR, TITOO & KIARIA

ADVOCATES ……………………..……………….ADVOCATE/RESPONDENT

VERSUS

JUNE NDUTA KINYUA ………………………..……… CLIENT/APPLICANT

RULING

The client/applicant filed a chamber summons on the 12th May, 2009 pursuant to the provisions of Rule 11 (2) of the Advocates (Remuneration) Order, Schedule x of the Advocates (Remuneration) (Amendment) Order 1997 and The Advocates Act, Chapter 16 of the laws of Kenya, seeking to set a side the decision of the taxing officer made on 24th March,2009 and for the bill of costs to be remitted to another taxing officer for review and re-assessment, in the alternative for the court to re-assess and review the advocate/client bill of costs dated 6th October, 2009.

When the matter was placed before me on the 30th July, 2009, Mr. Victor Githinji appeared for the Applicant/Client; Mr. Donald Kipkorir for the Respondent/Advocate, Mr. Cecil Miller indicated that he had instructions from the Executors of the Estate to have them enjoined as an interested parties.

On the 15th of September 2009 Miller & Co advocates filed an application by way of Notice of Motion seeking to have the intended interested parties enjoined to the application. On the 17TH September, 2009 Mr. Wena appeared for the interested party. Mr. Wena sought for an adjournment as Mr. Kipkorir appearing for the Advocate/Respondent had served a notice of Preliminary Objection the afternoon of 16th September, 2009. I granted an adjourned to enable Mr. Wena prepare to respond to the preliminary objections.

The application by the intended interested Party is by way of Notice of Motion dated 11th September, 2009 brought pursuant to the inherent powers of the court. It is supported by the affidavit of Ernest Kinyua Kamau. The application seeks to have the said Ernest Kinyua Kamauand Hon. Njenga Karume as Executors of the Estate of the late Jackson Kamau Chege be joined in the proceedings as Interested Parties.

In opposing the said application, the advocates/respondents raised a Preliminary Objection as stated above. The notice dated 16th September, 2009 read as follows:-

A. Facts as Set Out in the Court Record

(i)That, on 20. 02. 2008, Donald B. Kipkorir, Ann Mbugua and Cecil G. Miller, representing all the parties in Nairobi H.C. Succession Cause No. 2855 of 2005 (OS), recorded consent inter alia that the matter as between June Nduta Kinyua and the Estate be marked as settled and that the costs of Kipkorir, Titoo & Kiara Advocates be agreed or taxed, and be paid by the Estate; the said consent being recorded before Hon. Lady Justice Jeanne Gacheche.

(ii)That, the firm of Miller & Co. Advocates was served with the Bill of Costs on the 31. 10. 08 and Taxation Notice herein as set out in the affidavit of service filed on 24. 11. 08

(iii)That, the firm of Miller & Co. Advocates attended the taxation on 2nd December, 2008 and all subsequent court attendances.

(iv)That the Bill of costs taxed on 24th March, 2009.

(v)That, at all time, Miller & Co Advocates, were fully served of the taxation process.

(vi)That, we all appeared on 30th July, 2009 before Hon Justice Ali-Aroni who directed that the Reference proceeds on 17th September, 2009, and that Miller & Co. Advocates are free to file any application they deem fit prior.

B. Law

By the fact stated above, Kipkorir, Titoo & Kiara Advocates avers that the court has no jurisdiction to hear the application and/or allow the Executors to come on record, and Kipkorir, Titoo & Kiara Advocates shall plead:-

(i)Estopped by matter of Recordto the extent that the Bill of Costs is already taxed and the Executors elected not to participate.

(ii)Estopped In Paisby representation, conduct and negligence by Miller & Co Advocates and the Executors.

(iii)Applicants cannot approbate and reprobate.

(iv)Applicants are statutory barred from making such an application.

(v)Applicants are busy – bodies in the Reference

(vi)Application is filed Mala fide.

(vii)Application is a subversion of the judicial process.

(viii) Application is fatally defective.

Before the court for ruling is the preliminary objection.

The advocates/respondents contend that the application cannot stand in law. That the advocates for the interested parties were served with the Bill of costs but chose not to participate in the taxation. That they are estopped by virtue of Section 50 of the Advocates Acts since the bill has already been taxed, and that six months have lapsed since the said taxation. Further that the reference by the Client/Applicant has been brought under rule 11 of the Advocates Remuneration Order, which does not allow third parties to join at the reference stage. That the said advocates representing the estate cannot approbate and reprobate at the same time lastly the court has not jurisdiction to entertain the application. The advocate/respondent urged the court to strike out the application. Mr.Kipkorir,for the advocates/ respondent relied on the following relied authorities:-

1. Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd

2. Njoya & 6 other vs. Attorney General & Another (2004 )1 KRL 232

3. Air Alfaraj Limited & Raytheon Aircraft Credit Corporation and Another (2002) KLR 624

4. Apapco Industries Limited & PTA Bank (Nairobi) HCCC No.528 of 2006 (Milimani) Unreported

The intended interested parties advocate contends that the application before the court cannot be dismissed by way of a Preliminary Objection since the same is seeking to invoke the court’s discretion and that there is no statutory provisions barring the Client/Applicant from placing the application before the court. Further that the Preliminary Objection is not merited and ought to be dismissed.

The intended Interested Party in its application and affidavit alluded to the fact that on the 30th of June, 2009, the court allowed the executors of the Estate to formally apply to be enjoined to this proceeding as interested parties. My recollection of the said date is that Mr. Miller appeared for the estate and made an indication of the Executors wish to be enjoined to the suit. Off the record the court indicated that he may if he so wished, make a formal application and as such there is no order made as alluded to in the Certificate of urgency by Miller and Co Advocates dated 11th September, 2009.

In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (supra) the court stated:-

“So far as I am aware a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if urged as a preliminary point may disposed of a suit. Examples are an objection tot eh jurisdiction of the court or plea of limitation or submission that the parties are bound by the contract giving raise to the suit to refer the dispute to arbitration…...

A Preliminary objection is the nature of what used to be a demurrer. It raised a pure point of law which if urged on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

The application by the intended interested party is brought pursuant to the inherent powers of the court. The court is being asked to exercise its discretion to enjoin the parties. The above quoted authority is clear that a preliminary objection cannot lie where the discretion of the court is urged.

In the circumstances I find that the preliminary objection as raised cannot stand and I direct therefore that the application by the intended interested party dated 11th September, 2009 be argued on merits.

Dated and delivered at Nairobi this 12th day of November, 2009.

ALI-ARONI

JUDGE