[2015] KEHC 5006 (KLR)
The court declined to entertain the application for taxation of the advocate-client bill of costs because the matter had already been determined by the taxing master, who issued a ruling on 17/2/14. Entertaining the same application would amount to a legal absurdity and risk violating the principle of res judicata....
Source-derived case information.
- Citation
- [2015] KEHC 5006 (KLR)
- Parties
- Applicant: Kopot & Company Advocates; Respondent: Walter Edwin Ominde
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 177 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Taxation of Advocate Client Bill of Costs
- Outcome
- application declined
- Legal Topics
- Advocate Client Costs, Taxation Procedure, Retainer Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kopot & Company Advocates
Applicant
Walter Edwin Ominde
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Taxation of Advocate Client Bill of Costs
Legal Issues
- 1 Whether the application for taxation of the advocate-client bill of costs is properly before the court.
- 2 Whether the applicant is entitled to the reliefs sought in light of the prior ruling by the taxing master.
- 3 Whether the respondent has already paid sums to the applicant and if this affects the application.
Ratio Decidendi
The court declined to entertain the application for taxation of the advocate-client bill of costs because the matter had already been determined by the taxing master, who issued a ruling on 17/2/14. Entertaining the same application would amount to a legal absurdity and risk violating the principle of res judicata. The applicant was directed to follow the correct procedure under Section 51 of the Advocates Act for any further action, such as converting taxed costs into judgment or filing a reference if dissatisfied with the taxation. The court made no determination on the substantive issues raised, as it lacked jurisdiction to revisit a matter already decided by the taxing master.
Court Disposition
application declined
Orders
- The application is declined for want of jurisdiction as the matter has already been determined by the taxing master.
- The applicant is directed to follow the proper procedure under Section 51 of the Advocates Act.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. APP. NO.177 OF 2013
KOPOT & COMPANY ADVOCATES..............................................APPLICANT
VERSUS
WALTER EDWIN OMINDE...........................................................RESPONDENT
R U L I N G
1. In this application dated 18/4/13 the applicant (Advocate) prays for the following reliefs:
1) that the advocate -client bill of costs annexed hereto and dated the 2nd May 2007 be set for taxation before a deputy registrar.
2) The original trial file relevant to the Advocate Client Bill be made available to the taxing officer on the day of taxation.
3) The client do pay interest on each of the bills taxed at the statutory rate of 9% p.a. (in terms of Rule 7 of the Advocates Renumeration Order) from the date the bills. fee notes were delivered to the date of the taxation and thereafter at the court rate of 14% until settlement.
4) Upon the taxation of the bills as prayed above, a certificate do issue under the head of the taxing officer for the payment of the said amounts.
5) There being no dispute as to the fact of the existence of a retainer as between the Advocate and the client, the court/taxing officer do enter judgment for the sum certified as due to the Advocate and a decree do issue accordingly.
6) Costs e provided for.
2. The application is supported by the sworn affidavit ofStephen Kopot dated 22/4/13. The said affidavit states the Client/Advocate relationship between him and the respondent. There is also an attached bill of cost which apparently refer to the parties asShelter Consult vrs Kobil Petroleum Limited.
3. The respondent has filed a replying affidavit dated 20. 2.14 in which it has not denied that he instructed the applicant but on the contrary he denied having received the bill before taxation. He further annexed an itemised account showing how much money he has paid the applicant. He argued that apart from the applicant herein he had also instructed other two advocates and it would be wrong to have the applicant herein enjoy the instruction fees alone.
4. I have perused the application together with the parties written submissions. The issues raised by the respondent are weighty and are worth consideration, namely whether the applicant has followed a proper procedure in this application and whether there was other monies already paid by the respondent.
5. Be that as it may I am unable to deal with the application herein for the simple reason that the same was dealt with by the taxing master who gave his ruling on 17/2/14. If I were to proceed with the same it would mean that both of us would be dealing with one application separately which shall be a legal absurdity. As stated above I do not want to prejudice the outcome of any reference (if any) or the process of converting the taxed costs into judgment for now.
6. Consequently based on the simple reason that it would be almost res- judicata if I were to deal with the current application I shall proceed to decline and order the applicant to follow the right procedure as provided by Section 51 of the Act. For now I do not have any application to deal with or make any meaningful decision. This ruling shall apply to files Nos.178/13, and 179/2013 between the same parties. Cost in the cause.
Dated, delivered at Kisumu this 14th day of May 2015
H. K. CHEMITEI
J U D G E