[2022] KEHC 16114 (KLR)

Mokaya Omwoyo t/a Mokaya Omwoyo and Associates v Choda Fabricators Limited (Miscellaneous Application E672 of 2021) [2022] KEHC 16114 (KLR) (Commercial and Tax) (24 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16114 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E672 of 2021

WA Okwany, J

November 24, 2022

Between

Mokaya Omwoyo t/a Mokaya Omwoyo and Associates

Advocate

and

Choda Fabricators Limited

Client

Ruling

1. This ruling is in respect to the application/reference dated March 30, 2022 wherein the applicant/client seeks orders to set aside the decision of the taxing master delivered on the March 22, 2022 and further that the advocate-client bill of costs dated October 12, 2021 be struck out and/or dismissed with costs.

2. The application is supported by the affidavit of the client’s advocate Mr Andrew Ombwayo and is premised on the grounds that: -i.The taxing master misunderstood the meaning of a retainer under section 45 of the Advocates Act cap 16 laws of Kenya and the evidence on record, to wit, the retainer dated February 25, 2021. ii.The amounts already received and signed for by the advocate and that the advocate never exhibited any other pay of retainer by the company, an artificial entity that could only retain the advocate through its director or officer.iii.The taxing master erred in law and in fact in failing to construe that the advocate's action in the subject matter was and could only be based upon the retainer dated February 25, 2021. iv.The taxing master erred in dismissing the client's application dated December 6, 2021 and in considering the dispute over retainer both of which she lacked the competence or jurisdiction to entertain and which only lay with the judge.v.The taxing master erred by proceeding to tax the advocate-client bill of costs dated October 12, 2021 even after the lodging of the client's application dated December 6, 2021. vi.The taxing master erred in applying schedule 6 of the Advocates Remuneration Order and in holding that the subject Miscellaneous Application No 12 of 2020 and 20 of 2021 were before the High Court.

3. The advocate/respondent opposed the application through the replying affidavit of Mr Felix Mokaya Omwoyo Advocate who avers that the affidavit sworn by Andrew Ombwayo Advocate should be struck out as it is defective and irregular for contravening the Advocates Practice Rules having been sworn by an advocate representing a party in contentious matters. He faults the applicant’s advocate for making averments on evidential facts or issues that my require him to be called for cross examination. He contends that the application should be struck out because it is supported by a defective supporting affidavit.

4. The advocate further states that his bill of costs dated October 12, 2021 was taxed in accordance with the law save that the taxing master did not increase the amount due to the advocate by 50% as required by the Advocates Remuneration Order (ARO) for advocate client- bill of costs. It is the advocate’s case that the instant application does not meet the threshold set for the setting aside of a taxation and that at no point did he enter into any written retainer agreement with the client as alleged. He adds that the purported agreement produced by the client was neither signed nor received by the respondent and that the taxing master correctly held that the document does not pass the test of an agreement.

5. Parties agreed to canvass the application by way of written submissions even though the applicant had not filed its submissions as at the time of writing this ruling. I have considered the application, the respondent’s response and submissions. I find that the issues for determination are as follows:-a.Whether the affidavit sworn by applicant’s advocate is irregular and defective.b.Whether the parties had a valid retainer agreement and whether the taxing master had the jurisdiction to tax the advocate/client bill of costs dated October 12, 2021. c.Whether the taxed costs should have been increased by 50%.d.Who bears the cost of this application?

Affidavit Sworn By An Advocate 6. The respondent urged this court to strike out the application on the basis that it is supported by an affidavit that is sworn by an advocate contrary to the provisions of the Advocates (Practice) Rules as it contains contentious matters of fact which the said advocate is not privy to. For this argument, the respondent relied on the decision in the case of International Community of Women Living with HIV Registered Trustees v Non-Governmental Organizations Co-ordination Board & 2 others; Teresia Otieno (Proposed Interested Party) [2019] eKLR where the court struck out an affidavit sworn by the advocate and held that: -“In the instant matter, I find that no reason has been advanced as to why the petitioner in this case was unable to swear a replying affidavit but be that as it may be, I find that the matters deponed upon by the petitioner's advocate to be contentious matters, for which I find that there is no basis for considering the same. I find the affidavit to be defective and it should not be given any weight. I find and hold the affidavit sworn on August 23, 2018 by the advocate for the petitioner on contentious matters of fact which he is not privy to is not sustainable in law and should not be given any weight at all...."

7. Order 19 rule 3 (1) of theCivil Procedure Rules, 2010provides that:“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

8. Rule 9 of the Advocates (Practice) Rules states:“No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears.”

9. The intention of the above Rulesis to prohibit and insulate the advocate from personal involvement in disputes between their clients and adverse parties. My understanding of the Rules is that they do not bar an advocate from swearing affidavits on matters confined to the facts that the deponent may prove from his own knowledge. In this regard, courts have held that not all affidavits sworn by advocates are automatically defective. This means that an affidavit sworn by an advocate that is limited to facts which he/she is capable of proving on his own knowledge and does not disclose any issue necessitating his/her cross-examination is not flawed.

10. Citing its decision in Salama Beach Ltd v Mario Rossi, CA No 10 of 2015, the Court of Appeal expressed itself in Hakika Transporters Services Ltd v Albert Chulah Wamimitaire [2016] eKLR, as follows: -“As regards the appellant’s objection regarding the affidavit supporting the application, it is clear that Mr Munyithya has deponed only to matters within his personal knowledge as counsel acting in this matter both in the High Court and in this court. Ordinarily counsel is obliged to refrain from swearing affidavits on contentious issues, particularly where he may have to be subjected to cross examination (See Pattni v Ali & 2 others, CA No 354 of 2004 (UR 183/04). Rule 9 of the Advocates (Practice) Rules however permits an advocate to swear an affidavit on formal or non-contentious matters.”

11. I am however, aware of the principle that advocates should exercise caution and where possible desist from swearing affidavits on behalf of their clients. In this respect, I am in agreement with the holding in Magnolia Pyt Limited v Synermed Pharmaceuticals (K) Ltd [2018] eKLR where it was held that: -“Whereas there is nothing barring an advocate from swearing an affidavit in appropriate cases, where the matters deponed to are agreed or on purely legal positions, advocates should refrain from the temptation of being the avenue through which disputed facts are proclaimed. The rationale for the said principle is to insulate the advocate, an officer of the court, from the vagaries of litigation which, on occasions may be very unpleasant. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided like plague. In my view, however innocent an averment may be, counsel should desist from the temptation to be the pipe stem through which such an averment is transmitted.”

12. I have perused the affidavit in support of the instant application and I note that, indeed, it was sworn by the applicant’s advocate. I further note that the said affidavit revolves around the issue of legal fees due to the advocate from the client which issue cannot be said to be outside the knowledge of the advocate who swore the supporting affidavit. I find that not all the information contained in the supporting affidavit is contentious as some of it are matters that could have ordinarily come to the attention of the client’s advocate in the course of his work. As a result, I do not find the affidavit to be defective.

Retainer Agreement 13. The applicant averred that the parties had an agreement on the costs due to the advocate while the advocate maintained that no agreement was presented before the taxing master or this court to support the contention that there was an agreement.

14. The respondent observed that the purported letter exhibited by the applicant cannot be said to be an agreement as it was not signed by the advocate. The respondent submitted that it represented the applicant/ client on the basis of oral instructions issued by the applicant’s directors. It was the respondent’s case that the absence of a written retainer agreement cannot defeat its claim for fees. For this argument, the respondent cited the decision in Otieno Amisi & Co Advocates v Africa Merchant Insurance Company limited [2018] eKLR where the court held that: -“…from the foregoing a retainer denotes a "relationship" between parties, a retainer per se need not be in writing and that it can be oral or even "inferred from conduct of the parties" and In this case, there is no doubt at all that on the evidence on record, the relationship that governed the appellant and the respondents was a retainer.”

15. My finding is that the issue of whether or not the parties had a retainer agreement is a matter which the client should have proved through the production of a written and signed agreement to that effect. I find that in the absence of a written retainer agreement, the advocate was within his right to present his bill of costs for taxation and the taxing master had the jurisdiction to tax the said bill of costs in accordance with the provisions of the Advocates Remuneration Order.

Increase The Taxed Amount By 50% 16. The advocate faulted the taxing master for not increasing the taxed amount by 50% as required under part B of the relevant schedule of the Advocates Remuneration Order. Counsel urged this court to refer the matter back to the taxing master for the purpose of increasing the amount taxed by 50%.

17. My finding is that this is not the right forum for the respondent to make its claim for the 50% increment on fees. I say so because the application before me was filed by the client seeking orders to set aside the ruling on taxation. The advocate has opposed the said application and cannot at the same time turn around to ask for the same bill of costs to be referred back to the taxing master for taxation. I find that the advocate ought to present its objection to the taxation in the proper manner and not through the client’s reference which it has opposed.

18. In sum, I find that the application dated March 31, 2022 is not merited and I therefore dismiss it with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF NOVEMBER 2022. WA OKWANYJUDGEIn the presence of: -Mr. Otieno for Ombwayo for applicantMr. Mokaya for respondentCourt Assistant- Sylvia