[2023] KEHC 25976 (KLR)

Morara Apiemi & Nyangito Advocates v Metal Crowns Limited (Civil Appeal 19 of 2020) [2023] KEHC 25976 (KLR) (Civ) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 25976 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 19 of 2020

AN Ongeri, J

December 1, 2023

Between

Morara Apiemi & Nyangito Advocates

Appellant

and

Metal Crowns Limited

Respondent

(Being an appeal from the ruling of Hon. Makau (SRM) in Milimani CMCC No. 1801 of 2020 delivered on 18/12/2019)

Judgment

1. The trial court dismissed the appellant’s application dated 8/8/2019 which was seeking striking out of the respondent’s statement of defence and for entry of summary judgment.

2. The trial court found that the defence raised triable issues to be determined during the trial.

3. The appellant has appealed against the said ruling on the following grounds;i.The learned trial magistrate erred in law and fact by finding that the respondent’s defence raises triable issues which finding is untenable.ii.That the learned trial magistrate erred in law and fact by failing to judiciously interpret the law in relation to taxation and thereby arriving at a finding that is untenable and unjust.iii.The learned trial magistrate erred in law and fact by failing to judiciously consider the appellants submissions thereby arriving at an erroneous decision.

4. The parties filed written submissions in the appeal as follows; the appellant submitted that the respondent’s defence consisted of mere denials with no sufficient reasons as to why judgement should not be entered against the appellant’s costs already taxed at Kshs. 271,206. 32 and a certificate of taxation issued on 8/11/2018.

5. It was the appellants submission that the trial magistrate failed to take into account their submission that the respondent’s defence did not raise any opposition as to whether the appellant’s certified costs had been carried and/or set aside nor did it dispute the retainer between the appellant and the respondent.

6. Their defence was also silent as to whether there was a reference against the ruling of the taxing officer and a determination made that it be set aside and/or altered.

7. The appellant argued that judgement should therefore be entered in their favor as they instituted a suit for judgment and decree against the respondent consistent with section 48 (2) of the advocates Act. As for interest the appellant submitted the claimant is entitled to interest of its taxed costs at the rate of 14% per annum as from 30/11/2016 until payment in full.

8. The respondent submitted that there was a triable issue to be determined noting that that the respondent had denied the claim and the retainer and without prejudice pleading that if it had retained the appellant to act for it then it was based on a mutual agreement that it would be paid on services rendered.

9. The respondent submitted that it pleaded denying any existence of a retainer and in the defence indicated that if at all there was a retainer it was never part of the agreement that the appellant was to be paid interest on the legal services rendered neither was it brought to its attention. Further, the appellant did not file a reply to the respondent’s defence and thus there is a joinder of issue under Order 2 Rule 12 of the Civil Procedure Rules and the failure to file a reply to defence is an admission of the allegations in the statement of defence.

10. The respondent submitted that jurisdiction to strike out pleadings is discretionary and must be exercised judicially. That the trial magistrate exercised his discretion not to dismiss the respondent’s defence judiciously and therefore the defence has merit and the issues raised in it can only be ascertained through oral evidence during the main suit.

11. The sole issue for determination is whether the trial court was right in dismissing the application dated 8/8/2019 which was seeking summary judgment.

12. I find that there was no dispute that the applicant represented the respondent in ELRC No. 167/2015.

13. Section 48 of the Advocates Act which provides that“Action for recovery of costs(1)Subject to this Act, no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs, which may be in summarized form, signed by the advocate or a partner in his firm, has been delivered or sent by registered post to the client, unless there is reasonable cause to be verified by affidavit filed with the plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local limits of the Court's jurisdiction, in which event action may be commenced before expiry of the period of one month.(2)Subject to subsection (1), a suit may be brought for the recovery of costs due to an advocate in any court of competent jurisdiction.(3)Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs has been filed”.

14. I find that the respondent did not file a reference in respect of the bill of costs and the Appellant/Advocates was entitled to claim it through a suit for recovery of the taxed costs.

15. The respondent admitted that they had retained the Appellant on a mutual agreement and I find that there is no triable issue for the determination of the court.

16. I also find that the respondent admitted the appellant’s claim and the application ought to have been allowed.

17. I set aside the order dismissing the application and replace it with an order allowing the same.

18. Judgment be and is hereby entered in favor of the Appellant against the respondent in the sum of Kshs. 271,206. 32 together with costs and interest at the rate of 14% from the date of the issuance of the certificate of costs until payment in full.

19. The respondent also to pay the costs of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. ......................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent