[2021] KEHC 4726 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION MILIMANI LAW COURTS

MISCELLANEOUS APPLICATION NO. 66 OF 2020

ADVOCATE’S CLIENT BILL OF COSTS AS PROVIDED IN THE RELEVAN

PROVISIONS OF THE ADVOCATES REMUNERATION ORDER

ARISING FROM SUCCESSION CAUSE NO. 56 OF 2017 AT THE KADHI COURT

HAWA MOHAMED ABDALLA LEGAL REPRESENTATIVE OF THE ESTATE OF THE

LATE MOHAMED HUSSEIN ABSURA (DECEASED)

BETWEEN

LAWRENCE OIGORO NYANGITO T/A NYANGITO & ASSOCIATES.......ADVOCATE

AND

HAWA MOHAMED ABDALLA....................................................................................CLIENT

RULING

Backgroud

This ruling relates to proceedings in Advocate/Client dispute over unpaid legal fees in respect of a taxed Bill of Costs amounting to Kshs 12,043,100 for legal services in Succession Cause No. 56 of 2017 before the Kadhi’s court. There are two applications under consideration. The first application is the Notice of Motion dated 10th November, 2020 by the Advocate/Applicant and the second application is the Chamber Summons by the Client/Respondent dated 9th December, 2020. In respect of both applications and to avoid confusion, I will refer to the parties as Advocate or Applicant interchangeably and Client/Respondent interchangeably. On the 10th December 2020 parties agreed to have the two applications considered together through written submissions, it was so directed.

Before the Kadhi’s court the Client was the legal representative in the estate of her husband Mohammed Hussein Absura. Following a dispute over unpaid legal fees, the Advocate caused the bill to be taxed by the Deputy Registrar of the Family Division Nairobi (Hon. Wandia Nyamu). By a ruling delivered virtually on 6th October 2020, the bill was taxed at Kshs 12,043,100. This amount was not settled giving rise to these proceedings.

Notice of Motion

The first application is the Notice of Motion dated 12th October 2020, Lawrence Oigoro Nyangito T/a Nyangito and Associates. It is seeking the following orders:

a. That judgment be entered for the Applicant against the Respondent for the sum of Kshs. 12,043,100/- as it appears in the Certificate of taxation dated 12th October, 2020 with interest at court rates per annum from the date of taxation until payment in full.

b. That costs be borne by the Respondent.

The application is supported by grounds set out on the face of it and in supporting affidavit sworn by Lawrence Oigoro Nyangito on the 10th November 2020. In summary, the grounds relied on are that upon instructions from the client, the advocate executed the same diligently but the client failed to pay the fees due for the services rendered prompting the filing of the Bill of Costs dated 2nd July 2020; that the advocate/client Bill of Costs was taxed on 2nd September 2020 to the tune of Kshs 12,043,100 and a Ruling delivered on 6th October 2020; that a Certificate of Taxation was issued on the 12th October 2020 but the client has failed/or refused to pay prompting these proceedings. It is stated that it is only fair and just that orders sought in this Notice of Motion be granted to enable remuneration of the advocate for services rendered.

Chamber Summons

The second application is that of the client, Hawa Mohammed Abdalla brought by way of Chamber Summons dated 9th December, 2020. In it she is seeking the following orders:

1. That the decision of the Taxing Officer delivered on 6th October, 2020 in as far as the same relates to taxation of the entire Advocate/Client Bill of Costs by the Advocate/Respondent dated 2nd July, 2020 be set aside.

2. That the Honourable Court be pleased to refer back the matter to the Taxing Officer for fresh taxation of the entire Bill of costs herein and with proper direction thereof.

3. That in the alternative to prayer 2 above, this Honourable Court be pleased to re-tax the Bill of Costs dated 2nd July, 2020.

4. That costs of this Application be provided for.

The application is based on the grounds set out on the face of it and in the Affidavit in support of the Chamber Summons sworn on the 9th December 2020 by Hawa Mohammed Abdalla that the Taxing Officer erred in law and in principle by failing to appreciate the true nature of the matter before the Kadhi’s Court and the instructions given to the Advocate by the Client; that the Taxing Officer erred in law and in principle in applying the wrong schedule and/or scale to tax the Bill of Costs by applying Schedule 6 of the Advocates Remuneration Order which is reserved for matters before the High Court; that without prejudice to what is stated above, even if the Taxing Officer used the proper scale, the Taxing Officer arbitrarily and without backing of the law added Kshs 1,000,000 to the instruction fees when there was no basis for doing so; that the Taxing Officer failed to consider relevant factors including the nature of the matter before the Kadhi’s Court and the general conduct of the proceedings; that the Bill of Costs as taxed is excessive and unrealistic and a serious impediment to justice and that it is in the interest of justice that the Bill of Costs dated 2nd July 2020 be taxed afresh.

In the Supporting Affidavit, the Client deposes that following the Ruling of the Taxing Officer, Honourable Wandia Nyamu on 6th October 2020 her client wrote to the court (DR) on 12th October 2020 seeking reasons for the taxation of the Bill of Costs for purposes of ascertaining the rationale of the ruling but the letter was not responded to; that a reminder was sent dated 19th October 2020 and another one dated 27th November 2020 without responses; that a response dated 8th December 2020 was given via email. She further deposes that the Taxing Officer failed to appreciate that the proceedings before the Kadhi’s Court were in respect of a Succession Cause in the Estate of Muhammed Hussein Absura which was not contested and was therefore simple and straightforward. That the Advocate did not provide a valuation report to support the claim that the Estate was valued at Kshs 600,000,000 and therefore to use that amount as the value of the subject matter herein was wrong and without basis. That there was no basis for the Taxing Officer to add Kshs 1,000,000 to the instructions fees as the matter before the Kadhi’s Court was not complex. That the Kadhi’s Court is a subordinate court and therefore the applicable Schedule is 7 of the Advocate’s Remuneration Order 2014 and that item 10 of the Bill of Costs dated 2nd July 2020 related to getting up fees which is not applicable in cases before the subordinate court.

The Chamber Summons is opposed. In the Replying Affidavit dated 22nd December 2020 and sworn by Mr. Lawrence Oigoro Nyangito, it is deposed that the Chamber Summons is a nullity and incurably defective for being filed after the expiry of 14 days as the law provides; that upon delivery of the Ruling on 6th October 2020 by the Taxing Officer in the presence of both parties and their respective counsel, counsel for the Client applied for certified copy of Ruling and this was allowed upon payment of the requisite fees in the Registry but this was not complied with and that failure to obey the court order is a clear demonstration that the Client was not keen on filing a Reference Application within the stipulated time to contest the Bill of Costs.

It is further deposed that the Advocate also sent a letter dated 14th October 2020 and a copy of the Ruling and Certificate of Taxation notifying advocate for the Respondent to inform their client to pay the taxed Bill of Costs; that the Ruling contained reasons for taxation; that the Respondent has not sought leave to file the Reference Application out of time making the same application null and void ab initio. That the letter of the Client dated 27th November 2020 protesting the non-issuance of the reasons of taxation is an after-thought, a delaying tactic and in bad faith because it was written after the Notice of Motion dated 10th November 2020 seeking to enter judgment for the amount taxed had been filed. That the Deputy Registrar wrote to the advocate for the Respondent explaining that the reasons of taxation are contained in the Ruling; that the letter of dated 8th December 2020 signed by Caroline on behalf of the Deputy Registrar cannot be construed to mean and justify the false allegations by the Respondent that the Reasons of taxation were issued on 8th December 2020 and that said letter was putting the record straight that the reasons of taxation were given in the Ruling delivered on 6th October 2020.

It was deposed further that assuming that the Chamber Summons was filed properly, the same is unmeritorious for the reasons that all parties were present during the delivering of the Ruling and counsel for the Respondent sought a copy of the Ruling but failed to follow up the matter. That nothing prevented the Client from filing a Reference. That the Taxing Master relied on the correct principle in taxing the Bill of Costs including taking into account vale of the subject property. That the estate wase huge with many assets and. That the value of the estate was stated as Kshs 600,000,000 and that the Taxing Master took into account the correct principles in taxing the Bill of Costs.

Advocate’s Submissions

I have carefully read the submissions by the Advocate who is the Applicant in the Notice of Motion dated 10th November 2020. It replicates the contents of the lengthy Replying Affidavit dated 22nd December 2020 in opposition to the Chamber Summons dated 9th December 2020 that the Chamber Summons is fatally defective, null and void ab initio; that it does not involve a technicality that can be cured by invoking the provisions of Article 159 of the Constitution of Kenya 2010; that counsel for the Client sought to be issued with a copy of the Ruling which was granted immediately the Ruling was delivered but she failed to follow up the matter and that the Client through her counsel had the reasons for the taxation after the Ruling and Certificate of Taxation was notified to them by the Advocate.

Further submissions are that the matter before the Kadhi’s Court was not simple and straightforward as claimed but involved a fast estate and required due diligence and careful and successful execution; that the Taxing Master followed the law in taxing the Bill of Costs; that she pegged the Bill on the value of the estate being Kshs 600,000,000 as contained in the pleadings of the Client ant therefore her discretion in so doing ought not to be interfered with and that every party is bound by their pleadings. It is submitted that the issue of raising instructions fees by 50% is allowed in law under Schedule 10 (b) on the aspect of Probate and Administration of the Advocates Remuneration provisions.

The following authorities have been cited in support of these submissions by the Advocate/Applicant in Notice of Motion dated 10th November 2020:

i. Joreth Litmited vs. Kigano & Associates [2002] eKLR

ii. Succession Cause No. 347 of 2013 In the Estate of Alice Kahaki Njoka [2017] eKLR

The Advocate urges this court to dismiss the Respondents Reference Application (Chamber Summons) dated 9th December 2020 with costs and allow the Advocate’s Notice of Motion dated 10th November 2020 in terms of prayer 1 and 2 as prayed.

Client’s Submissions

The Client made her submissions under the following headings:

i. Whether the Reference is time-barred

Under this heading it is submitted that the letter dated 12th October 2020 and the reminders dated 19th October and 27th November 2020 were written pursuant to Paragraph 11 of the Advocates Remuneration Order and that the letter dated 12th October 2020 was written within time as stipulated in that paragraph. That the reasons for the taxation of the Bill of Costs were forwarded to the Client via email on 8th December 2020 which email was sent from the official email address of the Milimani High Court Family Division and the same referred to the letter dated 27th November 2020. That it is after receipt of the reasons that the Client filed the Reference one day after the reasons were given. That the Client could not file a Reference before receipt of the reasons because the mandatory provisions of the Advocates (Remuneration) Order are that a Reference is filed upon receipt of the reasons of the Taxing Officer. That the Client did not know that the Deputy Registrar would refer to the Ruling in giving her reasons to taxation. The case of Wanga & Co. Advocates v. Busia Sugar Company Ltd [2004] eKLR was cited to support the argument that the Deputy Registrar can give reasons outside what is contained in the ruling. In that case it was held that:

“It is trite law that this court’s jurisdiction can only be exercised after the taxing officer has given reasons for his or her decision pursuant to paragraph 11(2) of the Advocates Remuneration Order. I have perused the letter purported by the taxing officer to contain the reasons for her decision. What I can state is that it is always desirable for the taxing officer to state his or her reasons in her letter. It is not just enough to state that the reasons are contained in the ruling. The reasons given are not sufficient.”

The Client also cited B. Mbai & Associates v. Clerk, Kiambu County Assembly & Another [2017] eKLRwhere the court held that:

“In my view there is no magic in requiring the Taxing Officer to furnish reasons before making a reference. However, if the applicant decides to wait for a formal response from the Taxing Officer to the Notice before proceeding, he cannot be faulted for doing so. I find that the reference was filed within time.”

It is submitted that the position that a Reference can be filed upon receipt off a ruling is not contained in statute and therefore the argument that the Client should have filed the Reference 14 days after receiving the ruling does not hold water.

ii. Contested items of the Bill of Costs

It is submitted that the decision by the Taxing Officer to tax instruction fee at Kshs 7,040,000 is erroneous as it fails to appreciate the nature of the instructions given to the Advocate by the Client; that the Client instructed the Advocate to file Succession Cause before the Kadhi’s Court and provided all the documents and information relating to the assets forming the estate requiring only the filing of the Cause and attending court with no expertise or research required to carry out these instructions as these instructions entail filing statutory forms provided under the Law of Succession Act; that the Cause was uncontested and therefore there is no justification in the award of Kshs 7,040,000.

It was submitted that no valuation report was provided to guide the Taxing Officer in valuing the estate at Kshs 600,000,000 and basing the taxation on that figure; that the value of the estate could not be determined from the pleadings filed in the Succession Cause and the Affidavit in Support of the Petition for Letters of Administration (Form P & A) in which the assets of the deceased are listed did not provide the value of the estate; that the figure of Kshs 600,000, 000 is the net worth of the proposed Administrator and Proposed Sureties in Forms P&A 12 and 11 respectively and cannot be said to be the value of the estate and therefore the value of the estate cannot be ascertained from the pleadings given that there was no valuation report provided. The Client cited KTK Advocates v. Baringo County Government (2018) eKLRthe gist of which is that allocation of costs is always in the discretion of the court which discretion must be consistent with established principles and practice and that the fees recoverable are those fees for the steps in the proceeding by schedule of fees etc. In the same case the factors to be taken into account in awarding costs are difficulty and complexity of the issues, the length of the trial, the value of the subject matter and other factors which may affect the fairness or an award of costs and that it is the obligation of the taxing master to take into account these factors.

The Client further cited KANU National Elections’ Board & 2 others v. Salah Yakub Farah (2018) eKLRto point out that a court will not interfere with the award of taxing officer unless it thinks the award is so high or so low as to amount to an injustice to one party or the other and that a taxing officer places what he considers a fair value upon the work and responsibility involved and does not arrive at a figure by multiplying the scale fee (emphasis added).

It was submitted that the Advocate did not set out the details of the tasks he did in carrying out the instructions of the Client that can be said to have been complex or inordinately time consuming; that the matter before the Kadhi’s court was straightforward following the time sets in the Law of Succession Act and therefore the Bill of Costs as taxed goes against the principles of fairness and that the Deputy Registrar ought to have exercised her discretion judiciously.

It was submitted that there is no justification in increasing instructions fees by Kshs 1,000,000 given that the matter was not complex. On items 3, 5, 7 and 9 of the Bill of Costs it was submitted that these should be taxed basing on the fact that the matter was before a subordinate court and the correct Schedule to use is 7 for mentions before the subordinate courts. On item 10 of the Bill of Costs it was submitted that the Advocate was asking for getting up and preparing for trial which is provided for under Schedule 6 of Advocates (Remuneration) Order and is applicable for matters filed before the High Court.

Finally, it was submitted that the fate of the Notice of Motion dated 10th November 2020 will depend on whether the taxation of the Bill of Costs dated 2nd July 2020 will stand as taxed. The Client urged that the Chamber Summons be allowed as it was filed on time and that the Advocate’s Bill of Costs is not only erroneous but also unreasonably excessive and should be struck out completely.

Analysis and Determination.

I have taken time to read and understand the pleadings in this Succession Cause, particularly the issues raised in the two applications under consideration here being the Notice of Motion dated 10th November 2020 and the Chamber Summons dated 9th December 2020. It is my considered view, and it makes good sense, that I consider the Chamber Summons dated 9th December 2020 first. The decision arrived at by this court in resolving the issues raised in that Chamber Summons will determine the fate of the Notice of Motion.

The matter arises from instructions given to the Advocate by the Client to represent her in succession proceedings before the Kadhi’s Court in respect of her late husband’s estate. The matter concluded and Client failed to settle the legal fees. The Advocate caused the Bill of Costs dated 2nd July 2020 to be taxed before the Deputy Registrar of the High Court Family Division. The Bill was taxed at Kshs 12,043,100. A ruling to that effect was delivered on 6th October 2020. A Certificate of Taxation subsequently issued.

The Client was dissatisfied with the amount taxed and sought to challenge the same pursuant to Paragraph 11 of the Advocates (Remuneration) Order. Under Paragraph 11 (1) and (2) the following is provided:

(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.

The Client claims to have given the requisite notice to the taxing officer in respect to her dissatisfaction with the taxed bill and the items of taxation which she objected to. This Notice ought to be given within 14 days after the decision has been given. The Taxing Officer is required to record and forward to the objector the reasons for the decision after which the objector may within 14 days from the receipt of the reasons apply to the judge setting out the grounds of objection. The contention here is that upon giving a ruling on taxation by the Deputy Registrar on 6th October 2021, the Client notified the Deputy Register of her objection to the taxed bill. It is contended that no response was received necessitating reminders of the letters dated 19th October 2020 and 27th October 2020 and that finally through an email dated 8th December 2020 the Deputy Registrar forwarded reasons of taxation to the effect that the reasons are contained in the ruling delivered on 6th October 2020. This raises the issue as to whether the notice to the Deputy Registrar was sent within time as provided. The Client says it was but the Advocate says it was not. The Advocate contends that all parties were present when the ruling was delivered and that counsel for the Client applied for a certified copy of the ruling. It is contended that the Deputy Registrar granted that prayer with directions to pay fees at the Registry for the certified copy a direction that the Client failed to obey.

I have read the court record of 6th October 2020 when the ruling was delivered. I have captured and reproduced the short proceedings for that day at follows:

6/10/2020

Before: Hon. N. Wandia

CC: Rocky

Mr. Nyangito present for the Applicant

Ms Njiru H/B for Muhia for the Client/Respondent

Court – Ruling delivered virtually and in the presence of both parties.

Wandia

Signed

6/10/2020

The record of the proceedings of that day as reproduced above does not contain an application for certified copy of the ruling or the directions and order of the court in regard to that application. It is also clear to me that the proceedings having been conducted virtually meant that the parties and their advocates were not physically present in court but were linked to the court through a link provided in the cause list for that day. By extension it means that the physical ruling became available to the parties at a later time afterwards. Paragraph 11 (1) of the Advocates (Remuneration) Order can be construed to mean that the decision of the Taxing Officer may contain only figures taxed without explanations as to how those figures were arrived at hence the need to provide reasons for such a decision. It is also possible that the ruling contains explanations for the taxed figures.

My quick calculation shows that the letter to the Deputy Registrar dated 12th October 2020 was written within 14 days allowed in Paragraph 11 (1) of the Advocates (Remuneration) Order. The other letters after that date were outside that time but these were reminders. The Client states that she could not institute a reference without the reasons of taxation having been given. This issue, of the need to seek for reasons before instituting a reference, has been handled by courts. As stated in Evans Thiga Gaturu Advocates vs. Kenya Commercial Bank Limited [2012] eKLR in most cases the taxing officers give reasons in the rulings of taxation thereby making it unnecessary to seek further reasons for the decision. However, courts recognize that an applicant may decide to wait for a formal response from the Taxing Officer to the notice before filing a reference. In such cases an applicant should not be faulted for doing so (see B. Mbai & Associates Advocates vs. Kiambu County Assembly & another [2017] eKLR).

On this issue it is my finding, and I so hold, that the Notice by the Client contained in the letter dated 12th October 2020 was given within the stipulated time. Failure to receive a response from the Taxing Officer necessitated her waiting for a formal response before taking action notwithstanding that she, through her counsel, had been served with the ruling and certificate of taxation from the Advocate. She cannot be faulted for choosing to wait for a formal response. When that response was received it pointed her to the same Ruling to the effect that it contained the reasons for the taxation. She has stated that she did not know that there were no further reasons forthcoming. I will not fault her for that.

Having accepted that the Notice was given within time, this court finds the claim by the Advocate in his opposition to the Chamber Summons to the effect that the same is void ab initio and therefore a nullity untenable and must therefore fail.

The second major issue raised here is the Schedule to be followed in taxing the Bill Costs in this matter under the Advocates (Remuneration) Order. Parties have submitted on the matter with the Client particularly submitting that the Taxing Officer used Schedule VI which is used for taxation of bills for matters filed in High Court instead of Schedule VII which deals with bills of costs in Subordinate Courts where the Kadhis Courts fall. The Ruling of the Taxing Officer is clear that she relied on Schedule 10 that deals with taxation of bills in respect of Probate and Administration proceedings. Schedule X does not clarify whether it applies to proceedings before the High Court or Subordinate Courts. In my view this issue is settled by the provision of Paragraph 51C - Costs in probate and administration cases “Subject to paragraph 22, the scale of costs applicable to proceedings concerning probate and the administration of estates is that set out in Schedule 10. ”The paragraph, just like Schedule X, does not differentiate proceedings before the High Court and those in the Subordinate courts.

I have considered the submissions before me and the authorities cited by both sides. I am alive to the fact that the discretion of the Taxing Officer should not be interfered with unless it appears that the Taxing Officer is wrong in principle or has not exercised his/her discretion judicially and has exercised it improperly (see KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR).

The Court of Appeal inPremchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others. EALR (1972) EA 162 set out the principles of taxation as follows:

i. (a) That costs be not allowed to rise to such a level as to confine access to the courts to the wealthy;

(b) that a successful litigant ought to be fairly reimbursed for the costs that he has had to incur;

(c) that the general level of remuneration of advocates must be such as to attract recruits to the profession; and

(d) that so far as practicable there should be consistency in the awards made;

ii. That the court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party;

iii. That in considering bills taxed in comparable cases allowance may be made for the fall in value of money;

iv. That apart from a small allowance to the appellant for the responsibility of advising the undertaking of the appeal there is no difference between the fee to be allowed to an appellant as distinguished from a respondent;

v. That the fact that counsel from overseas was briefed was irrelevant: the fee of a counsel capable of taking the appeal and not insisting on the fee of the most expensive counsel must be estimated.

The taxation in this matter proceeded on a bill of costs drawn basing it on the value of the estate which the Advocate took to be Kshs 600,000,000. This is the figure used by the Taxing Officer to base the taxation on. The Client however insists that the value of the estate has not been determined and that without a valuation report it is clear that the value of the estate has not been determined. She claims that the amount of Kshs 600,000,0000 was picked from the Affidavits of proposed sureties and herself as their net worth and not the value of the estate. I have perused the pleadings filed before the Kadhi’s court. I have noted that the Affidavit of Justification of the Proposed Administrator dated 4th October 2017 and the Affidavit of Justification of Proposed Sureties dated 4th October 2017 put their respective net worth as Kshs 600,000,000.

Though the list of the properties forming the estate of the deceased is given in paragraph 6 of the Affidavit in support of Petition for Letters of Administration Intestate dated 18th September 2017 the monetary value of the estate has not been given. Without a valuation report I am persuaded by the argument that the Taxing Officer made an error in basing the taxation on a value that did not relate to the value of the estate.

The Taxing Officer exercised her discretion in taxing the Bill of Costs in this matter but in my view the amount taxed is on the high side given that the matter was before a subordinate court, was not contested and the estate had not been valued to give it a monetary value that could form the basis of the figure taxed. Further I find no basis for the additional Kshs 1,000,000 granted to the Advocate. Without going to specific items of succession to avoid prejudicing further action on the matter, it is my considered view that the Bill of Costs was exorbitantly taxed. Consequently, I am persuaded, and I so order, that the Chamber Summons dated 9th December 2020 must succeed. The same is allowed to the effect that:

1. The decision of the Taxing Officer delivered on 6th October 2020 in as far as it relates to taxation of the entire Advocate/Client Bill of Costs dated 2nd of July 2020 is hereby set aside.

2. The Bill of Costs is hereby referred back for fresh taxation of the entire Bill of Costs before another Deputy Registrar of the High Court Family Division.

Further, the effect of having allowed the Chamber Summons herein is that the Notice of Motion date 10th November 2020 is hereby declined. Each party shall bear own costs in respect of both applications. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 3RD DAY OF JUNE 2021

S. N. MUTUKU

JUDGE