[2023] KEHC 26279 (KLR)

Mogire Nyamwaya t/a Mogire Nyamwaya & Co. Advocates v Mwaniki (Miscellaneous Application E024 of 2021) [2023] KEHC 26279 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26279 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Application E024 of 2021

JRA Wananda, J

December 8, 2023

Between

Mogire Nyamwaya t/a Mogire Nyamwaya & Co. Advocates

Advocate

and

Joseph Mwangi Mwaniki

Client

Ruling

1. The matter was commenced when the Advocate filed a Bill of Costs arising from Eldoret Children’s Cause No. 50 of 2018 in which the Advocate alleged to have represented the Client. By the Ruling delivered herein on 26/01/2022, the Deputy Registrar taxed the Bill at the sum of Kshs 65,225/-.

2. Pursuant thereto, the Advocate extracted the Certificate of Costs and applied for execution. Thereafter, a Notice to Show Cause (NTSC) was issued against the Client.

3. In response, the Client has now approached this Court vide the Notice of Motion dated 8/09/2022 seeking the following orders:a.[……….] Spentb.[………] Spentc.The execution proceedings as commenced by the Advocate seeking to have the Respondent committed to civil jail be set-aside for being premature and irregular.d.The costs of the application be awarded to the Respondent.

4. Basically, the grounds of the Application are that no Judgement on the taxed costs has been entered as required by law, that in the absence of entry of Judgment no execution can be carried out in respect of the taxed costs and that the Respondent disputes the retainer of the Advocate.

5. In support of the Application, the Client has relied on his Affidavit filed through Messrs Wambua Kigamwa & Co. Advocates. He deponed that the Advocate has commenced execution of the taxed costs by way of seeking the Respondent’s arrest and committal to civil jail, that a Notice to Show Cause (NTSC) was preceded with the Ruling delivered on 26/01/2022 by the Deputy Registrar, no Judgment has been entered on the taxed costs and therefore the Advocate has not complied with Section 51(2) of the Advocates Act, in any event, he never retained the Advocate in the Children’s case leading up to the taxation, he met one Judy Muiruri Advocate who agreed to undertake his defence and they agreed on fees which he paid, and that no Decree and Certificate of Costs has been extracted.

6. In response to the Application, the Advocate filed the Replying Affidavit sworn on 12/04/2023. He deponed that this Cause served the purpose of taxation of costs for the Children’s Cause, the Ruling on taxation was delivered on 26/10/2022 and the Bill taxed at a sum of Kshs. 65,225/- in the presence of the Client’s Counsel, on the same date stay of execution was granted and which lapsed on 26/02/2022, 1 year has passed since the Ruling was delivered, a Certificate of Costs was issued on 6/05/2022, the Client has made no attempt to alter or set aside the Certificate of Costs, by procedure the Client cannot challenge the retainer after taxation has already been completed, the power to order that Judgment be entered for sum certified is discretionary and cannot be forced by the Applicant, the Ruling and/or decision of the taxing master is therefore final and binding upon the parties, the NTSC taken out by the Advocate followed all due procedure and is therefore proper and regular, the Application is meant to delay the payment of the taxed costs, the Certificate of Costs was not issued in vain, and that the Application is an attempt to take the Advocate in circles and in perpetual litigation.

7. When the parties appeared before me on 2/05/2022, I directed them to file Submissions. Counsel for the Advocate then informed me that he will not be filing Submissions. Nevertheless, I still gave both parties the opportunity to file Submissions.

8. Pursuant thereto, the Client filed his Submissions on 31/07/2023. I have not come across any Submissions by or on behalf of the Advocate.

Client’s Submissions 9. The Client’s Counsel submitted that the Application is hinged on Section 51(2) of the Advocates Act, that the execution proceedings commenced by the Advocate are premature since no Application has been filed for Judgment to be entered on the taxed costs. He cited the cases of Machira & Co Advocates v Arthur K. Magugu [2015] eKLR and Tom Ojienda v County Government of Meru [2021] and submitted that the application for entry of judgment on the taxed costs is a prerequisite for execution proceedings to realize the costs, and that the prerequisite having not been met, the execution proceedings ought to be set aside.

10. Counsel also relied on the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR which, he submitted, was cited in the case of Republic v Chairman, Land Disputes Tribunal, Mutomo sub District Ex Parte Titus Kiyili Kinyumu: Mutua Kavundu (Interested Party) [2021] eKLR and submitted that failure to follow the law as laid down deprives the Client the opportunity to challenge the retainer of the Advocate which opportunity he is entitled to, he has never retained the law firm of Mogire Nyamwaya & Company Advocates for the Children’s case the subject of the taxation, he met one Judy Muiruri Advocate who agreed to undertake his defence, they agreed on fees and he variously paid her by cash and Mpesa, the said assertions have not been controverted by the Advocate in his Replying Affidavit, and the same remain unchallenged. He cited the case of Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR.

Analysis & Determination 11. Upon considering the record including the Affidavits, Submissions and authorities presented, the issue that arises for determination, in my view, is “whether, in an Advocate-Client taxation Cause, execution can be undertaken before the Certificate of taxed costs is adopted and entered as a Judgment of the Court”

12. In answering the said issue, I cite Section 51(2) of the Advocates Act which provides as follows:“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.

13. The issue herein relates to an Advocate-Client Bill of Costs. Although the Bill has been taxed and a Certificate of Costs issued, it is not in dispute that Judgement on the taxed costs has never been sought or entered. I am in full agreement with the Client’s Counsel that in light of the provisions of Section 51(2) of the Advocates Act cited above, in the absence of entry of Judgment, no execution can be carried out in respect of the taxed costs.

14. For my view above, I find good company in various decisions. For instance, Lady Justice Kamau J, in the case of Machira & Company Advocates v Arthur K Magugu & Another (2012) eKLR, quoted by the Client’s Counsel, observed as hereunder:14. The court was not in agreement with the Advocates’ contentions that the application herein was execution proceedings against the Client herein for the reason that, execution proceedings can only commence once judgment is entered. Indeed, the Certificate of Taxation could not be executed in its own right until after entry of judgment in accordance with Section 51(2) of the Advocates Act …..….”

15. Similarly, in the case of Professor Tom Ojienda v County Government of Meru (2021) eKLR, also cited by Counsel for the Client, P. J. Otieno J stated as follows:“When is a decision on taxation enforceable? Section 51 (2) of the Advocates Act provides.“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs” (emphasis added)The provision tells me that a decision of the taxing master on taxation is not a final judgment capable of execution and the court, as defined by the Act, must be resorted to pronounce a judgment. I further read and understand the statute to say that a judgment would only be entered by the court where there is no contention as to retainer of the advocate. Where there is dispute as to retainer, the recourse is a suit in which retainer is to be proved.”

16. In the circumstances, I find that after taxation of costs in an Advocate-Client taxation Cause, execution can only be undertaken after the Certificate of taxed costs is adopted and entered as a Judgment of the Court. To that extent, I find that the execution commenced herein was premature.

17. On a different ground alluded to, the Client has submitted that failure to follow the law as laid down deprives him of the opportunity to challenge the retainer of the Advocate which opportunity he is entitled to, that he never retained the law firm of Mogire Nyamwaya & Company Advocates to represent him in the Children Case the subject of the taxation, that he met one Judy Muiruri Advocate who agreed to undertake his defence, they agreed on fees and that he variously paid her by cash and Mpesa.

18. The Bill of Costs having been already taxed and the issue of retainer not having been raised before or during the whole process, I have serious doubts whether the Client can at this late stage still raise the issue of retainer. On this point, I refer, for instance, to the statements made by Oguttu Mboya J in Githinji, Kimamo & Company Advocates v Endmor Steel Millers Ltd [2021] eKLR where he held as follows:26. Having found and held that the certificate of taxation has not been varied, altered and/or rescinded, the only other existing bar to entry of judgment on the basis of a certificate of taxation, would be a dispute as to the existence to a Retainer.27. Be that as it may, a dispute as to the Retainer could only have been raised at the time when the bill of costs was presented for taxation and in the event the same was so raised, the Deputy Registrar would have been constrained to refer the matter to the Court for determination or adjudication, which was not the case. ……….……………………………………………………….29. On the other hand, the issue as to Retainer, could also be ventilated through a Reference, if any was ever filed in accordance of the law. However, it suffices to note that no Reference was ever filed or at all.………………………………………………………30. To the extent that no Reference was ever filed, it cannot be gainsaid that there is no dispute as to the Retainer. Consequently, no legal bar exists to prohibit the entry and/or endorsement of judgment on the basis of the Certificate of Taxation, which was issued and signed by the Taxing Mistress.31. In view of the foregoing, the only ground envisaged under section 51(2) of the advocates Act, that would have barred the entry and endorsement of judgment in favor of the Advocate/Applicant herein does not exists. Consequently, the Applicant herein has satisfied and/ or established the conditions to warrant the endorsement of judgment”

19. In light of the above, the intention to raise the issue of retainer appears far-fetched. Be that as it may, having already found that it was premature to commence execution before entry of Judgment on the Certificate of Taxation, the Application is already successful. This other issue shall be dealt with if and when it is brought up at the opportune time.

Final Orders 20. In the premises, I issue the following orders:i.The Notice of Motion dated 8/09/2022 filed by the Client is hereby allowed in terms of prayer 3, with costs to the Client.ii.Consequently, the execution proceedings commenced by the Advocate, being premature, is hereby set aside.iii.The Advocate is at liberty to apply for Judgment under the provisions of Section 51(2) of the Advocates Act, Cap. 16 before initiating, commencing or proceeding with execution of the taxed costs.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF DECEMBER 2023……………..……..WANANDA J.R. ANUROJUDGE