[2023] KEHC 25545 (KLR)

M/S Oduk & Co. Advocates v Mideny (Miscellaneous Civil Application E054 of 2021) [2023] KEHC 25545 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25545 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application E054 of 2021

PN Gichohi, J

November 20, 2023

IN THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF TAXATION COSTS AS BETWEEN THE ADVOCATE AND THE CLIENT

Between

M/S Oduk & Co. Advocates

Advocate

and

Donald Ochieng Mideny

Client

Ruling

1. M/S Oduk & Co. Advocates has moved this Court by way of a Chamber Summons dated 27th October 2022 and filed on 28th October 2022 and brought under Rule 11 (1) and (2), Rule 13 (1) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act. The background of the Application is that M/S Oduk & Co. Advocates flied before the Deputy Registrar, Advocates and Client Bill of Costs dated 27th October 2021 and filed on 1st November 2021 as against the Client Donald Ochieng Mideny. That Bill was drawn under Schedule V of the Advocate’s Remuneration Order. The Bill was duly taxed at Kshs. 343,743/= vide a ruling dated 14th October 2022 and a Certificate of taxation dated 24th October, 2022 issued to that effect.

2. Aggrieved by the Taxiing Master’s decision, the Advocate now seeks order that: -a.The order of the taxing master dated 14th October 2022 be set aside, the same having proceeded on the wrong principles of law, and was manifestly so low as to make no sense of the legal representation.b.The order of the taxing master setting the instruction fee of Kshs. 66,493 be set aside, the same having been based on the wrong quantum.c.The order by the taxing master disallowing items 2-5, 7-12, 14-17, 19-25, 28,29,31-35, 37-40, 42-50, 53-55,59-61,63,64,66, 67, 69,70, 72, 74, 76-84, 86-90, 92,94,97,98, 100-108, 110, 112,113, 115-117, 119-122, 124-128, 130, 132- 134, 136,138-140, 145, 145,147,-158, 160-162, 164-166, 168-172, 174-183, 185,186,189-194,197-2001,203-243 by taxing the items off completely and was an error in principle ought to be set aside.d.The taxing master erred in not upholding the election made by the Advocate on the schedule applicable in the Advocate’s /Client’s bill of costs dated 27/10/2021, and the said finding be set aside.In the alternative, an order be issue directing that a bill drawn under schedule 6, the taxing master having erred in principle by proceeding to tax the bill under schedule 6, when the bill was not drawn under the said schedule and thereby disallowed the bulk of the items charged instead of the directing that the bill be drawn accordingly, a fact which caused serious prejudice to the advocate and was an error of principle.e.There be an order as to costs.

3. The grounds are on the face of the Application are mainly that the Taxing Master failed to appreciate that the Advocate had made a valid election under Paragraph 22(1) of the Advocates Remuneration Order and wrongly taxed the bill under Schedule 6. That she failed to use the correct principal sum on quantum so as to determine the correct instructions fees thus exercising her discretion improperly and therefore, the bill as taxed was so manifestly low as to be offensive to the fair practice and notion of the legal profession.

4. In support of Application is an Affidavit sworn by Ezekiel Oduk Advocate on 27th October 2022 which is an emphasis of the application herein.

5. Upon being served and through the firm of Kiptiness & Odhiambo Associates Advocates, the Client raised a Notice of Preliminary Objection dated 3rd January 2023 that the said Chamber Summons offended Paragraph 11 (2) of the Advocates (Remuneration) Order 1962 and ought to be struck out for the following reasons: -1. The Advocate herein has failed to comply with the mandatory provisions of Paragraph 11 (2) of the Advocates (Remuneration) Order 1962 by filing the reference prematurely, that is, before they retrieved the reasons for the ruling delivered by the Honorable Taxing Master on 14/10/2022 and/or failing to attach the said reasons to their reference;2. The reasons for the ruling on taxation are not apparent from the Taxing Officer’s ruling. Therefore, the Advocate’s reference cannot reasonably be based on said undisclosed reasons and is premature, irredeemably incompetent and bad in law;3. This Honorable Court is bereft of jurisdiction to interfere with the Honorable Taxing Master’s discretion on taxing the bill of costs dated 27/10/2021 as per the ruling delivered on 14/10/2022 as the Advocate’s instant reference is premature thus irredeemably incompetent.

6. Directions were given that the Preliminary Objection be canvassed by way of written submissions. In support of the Preliminary Objection, the client filed his written submissions titled “clients/respondents’ list and bundle of authorities in support of the notice of preliminary objection dated 03/01/2023”. It is dated 7th February 2022 and filed on 21/02/2023 where he singled out one issue for determination being whether the Advocates reference is properly on record.

7. He submitted that this Court’s jurisdiction is only acquired once the Taxing Master provides reasons for the ruling in line with Paragraph 11 (1) and (2) of the Advocates (Remuneration) Order.

8. While relying on the case of Twiga Motors Limited v Dalmas Otieno Onyango [2015] eKLR, he submitted that the Advocate only filed the reference three (3) days after the notice of objection was filed and request for reasons for the decision yet he was to file the same within fourteen (14) days from the date of receipt of the reasons for the ruling on taxation.

9. He submitted that the taxing officer was not given an opportunity to give reasons before this reference was filed which made the reference fatally defective and therefore fit to be dismissed at first instance and the Advocate will be at liberty to file a fresh reference within the prescribed after the reasons for the Ruling were issued.

10. Lastly, he submitted that this Court does not have a reason to interfere with the Ruling by the Taxing Master as at the date of filing the Reference, the Taxing Master’s reasons for the same were unknown and cannot be inferred by Counsel through the Reference. In the circumstances, Counsel submitted that the Reference should be struck out at the first instance with costs to the Client.

11. On 10th February 2023, the Advocate filed his written submissions dated 9th February 2023. He also filed a list and bundle of authorities similarly dated and filed on 9th February 2023 and 10th February 2023 respectively. He opposed the Preliminary Objection in toto. Citing several decisions of the court including National Oil Corporation Limited v Real Energy Limited & another [2016] eKLR and Evans Thiga Gaturu Advocate v Kenya Commercial Bank Limited [2012] eKLR, the Advocate submitted that the common thread was that if reasons were contained in a ruling, there was no need to seek the same.

12. He submitted that the Reference was filed in compliance with Rule 11 (2) of the Advocates (Remuneration) Order 1962 thereby unmeriting the Preliminary Objection. He maintained that the Reference was properly instituted herein praying the Preliminary Objection be dismissed with costs.

Determination 13. This Court has considered the material herein. According to the client, the Advocate was in breach of Paragraph 11 (2) of the Advocates (Remuneration) Order 1962 for failing to first obtain the reasons for the Taxing Master’s decision and then filing the present Refence and for furthermore failing to furnish the reasons for the Taxing Master’s decision. Paragraph 11 (1) & (2) of the Advocates (Remuneration) Order 1962 provides that: -(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.

14. From the above provisions, the filing of a Reference is a process. Indeed, the Court in Wanga & Company Advocates v. Dorcas J. Kisorio [2008] eKLR the court held: -“I agree with the Applicant that it is a condition precedent that the Taxing Master gives the reasons for the taxation on the items to which objection is taken before a Reference may be filed under Rule 11 (2). For the Taxing Master to give reasons, the Applicant must have within 14 days after the decision given notice in writing to the taxing officer of the items to which he objects.”

15. In the present case, the ruling of the Taxing Master was rendered on 14th October 2022. Thereafter, the Advocate/Objector notified the Taxing Master on 24th October 2022 to furnish the reasons for the items objected to. Then on 28th October 2022, the Advocate filed the Reference proceedings.

16. From the above provision, the broad issue for determination is simply whether, the Advocate’s Reference vide the Chamber Summons dated 27th October 2022 is properly before Court for being filed before reasons are issued by The Taxing Master.

17. There is no doubt that the Advocate was dissatisfied with the decision by the taxing master contained in the ruling dated 14th October 2022. The Advocate does not deny that upon perusal of the Taxing Master’s, he wrote a letter dated 24th October 2022 to the taxing master and this letter states: -“The Advocate herein objects to the whole decision dated 14/10/2022 taxing the clients bill of costs and request for reasons for taxing all the items in bill in the advocate /client bill of costs dated 27/10/2021. ”

18. The importance of compliance with timelines under Paragraph 11 (1) of the Advocates (Remuneration) Order was emphasised in the case of Twiga Motors Limited (supra) where the Court held that: -“The time limits in Rule 11 of the Advocates Remuneration Order have been put there for a reason. Failing to adhere with the said timelines would mean that the application would be rendered incompetent in the first instance.”

19. The circumstances under which J. Kamau J made the above finding while dismissing the Plaintiff’s Application were different from those in the present case in that other than seeking setting aside of the decision by the taxing master, the Applicant also sought review of that decision but had not complied with the timelines and had not attached the copy of the ruling for the Court to handle the issue of review.

20. In the matter before this Court, the Advocate was within the timelines for notifying the taxing master of his objection and having chosen to object to the entire decision by the taxing master, he must have had reasons for that objection. There is nothing to show that letter seeking reasons was responded to or withdrawn.

21. Despite the above, a perusal of the ruling by the Taxing Master shows that it contains reasons. Where the ruling contains reasons, it does not make sense for a party to seek for reasons simply to appear to comply with Paragraph 11 (1) of the Advocates (Remuneration) Order. That has been the position held in several cases including Evans Thiga Gaturu (supra) where the Court had this to say: -“In most cases the court is aware that the taxing officers in their decisions on taxation do deliver comprehensive ruling which are self-contained thus obviating the necessity to furnish fresh reasons thereafter. In such circumstances, it would be foolhardy to expect the taxing officer to redraft another “ruling” containing reasons …however, where there are reasons on the face of the decision, it would be futile to expect the taxing to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring the reference. Otherwise, mere adherence to the procedure may lead to absurd results if the advocate was to continue waiting for the reasons …I do not see the reason why the taxing officer at the time of making his decision do so with reasons therefore.”

22. Further, in the case of National Oil Corporation Limited (supra) L. Njuguna J held: -“In my view there is no magic in requiring the Taxing Master to furnish reasons before making a reference. Where reasons are contained in the decision, a party ought not seek the same simply because it is fashionable to do so. Accordingly, nothing turns the issue that the Applicant did not seek the reasons for the decision before filing the reference.”

23. This Court is therefore persuaded that failure to await response from the Taxing Master seeking reasons for taxation would not prevent the Advocate from filing the reference in the circumstances herein. As a consequence, it is clear that the issue raised by the client is not one that can dispose of this matter. A Preliminary Objection should be one that is capable of disposing the matter before the Court as was held in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 when Sir Charles Newbold at page 701 thus: -“A preliminary objection is what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.

24. The action by the Advocate is not an issue that goes to the root of this matter. In the circumstances: -1. The Preliminary Objection is disallowed.2. Parties to proceed with the Reference as filed in Chamber Summons dated 27th October, 2022. 3.Costs to abide the outcome of the Reference.

DATED, SIGNED AND DELIVERED (VIRTUALLY) AT KISII THIS 20TH DAY OF NOVEMBER, 2023. PATRICIA GICHOHIJUDGEIn the presence of:____N/A for the AdvocateN/A for the ClientAphline , Court Assistant