[2023] KEHC 25643 (KLR)

M/s Oduk & Co Advocates v Mideny; South Sugar Company Limited (Appellant) (Miscellaneous Civil Application E055 of 2021) [2023] KEHC 25643 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25643 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application E055 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

and

South Sugar Company Limited

Appellant

Ruling

1. The background of this matter is that M/S Oduk & Co. Advocates filed before the Deputy Registrar, an Advocate and Client Bill of Costs dated 27th October 2021 against the Client Donald Ochieng Mideny. That Bill was duly taxed at Kshs 191,413/= vide a ruling dated 14th October, 2022 and a Certificate of taxation dated 24th October, 2022 issued.

2. Aggrieved, the Advocate expressed his objection to the Taxing Master’s decision and requested for reasons for taxation vide his letter dated 24th October 2022. Then on 28th October, 2022, the Advocate filed Chamber Summons dated 27th October ,2022 under Order 11 (1) and (2), Rule 13 (1) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act seeking Orders that:a.The order of the taxing master dated 14th October 2022 be set aside, the same having proceeded on the wrong principle of law, and was manifestly too low as to make no sense of the legal representation.b.The order of the taxing master setting the instruction fee at Kshs 126,293/70 be set aside, the same having been based on the wrong amount of quantum.c.The Taxing Master erred in failing to tax the bill under Schedule 5 as elected by the Advocate when taxing the bill of costs dated 27/10/2021, and the said action was arbitrary, oppressive and unlawful, being contrary to the principle, and be set aside.d.The Taxing Master’s exercise of discretion was improper and prejudicial.e.There be a provision for costs.

3. Upon being served with this Application, the firm of Kiptiness & Odhiambo Advocates LLP for the Client file a Notice of Preliminary Objection dated 3rd January, 2023 seeking that the Application be struck out for being incompetent, bad in law, vexations and frivolous on the grounds that: -1. The Advocate failed to comply to the with mandatory provisions of Paragraph 11(2) of Advocates (Remuneration) Order 1962 by filing the reference prematurely, that is, before they retrieved the reasons for the taxing master and failing to attach the said reasons to their Reference.2. The reasons for the taxation are not apparent from the Taxing Master’s ruling and therefore, the Advocates’s Reference cannot reasonably be based on the said undisclosed reasons and is premature, irredeemably incompetent and bad in law.3. The Court lacks jurisdiction to interfere with the Taxing Master’s discretion in taxing the Bill of Costs.

4. Directions were given that the Preliminary Objection be heard first and be canvassed by way of written submissions.

Client’s Submissions 5. In his submissions dated 7th October 2022, Counsel for the Client maintained and highlighted the contents of the Preliminary Objection singling out one issue for determination as whether the Advocate’s Reference is properly on record. While maintaining the provisions of Paragraph 11 (1) and 11 (2) of the Advocates (Remuneration) Order and relying on the decision in Twiga Motors Limited v Dalmas Otieno Onyango [2015] eKLR, Counsel submitted that the Judge acquires jurisdiction to entertain a Reference only after the Taxing Master provides reasons for the ruling.

6. Counsel submitted that the Taxing Master was not given an opportunity to give reasons before this Reference was filed and, in the circumstances, Counsel submitted that the Reference should be dismissed at the first instance. That the Advocate will be at liberty to file a fresh Reference within the prescribed period after the reasons have been given.

Advocate’s Submissions 7. On his part, Counsel for the Advocate also highlighted the provisions of Paragraph 11 (1) and 11 (2) of the Advocates (Remuneration) Order and listed the following issues for determination: -1. Whether the Reference is premature having been filed before obtaining reasons for the ruling by the Taxing Master were furnished.2. Whether the preliminary objected is merited.3. Whether the Court is bereft of jurisdiction to interfere with the Taxing Master’s decision.

8. Relying on several cases including John Okuna Ogango v Doloress N. Collins & another [2022] eKLR, Counsel submitted that that if reasons were contained in the ruling, there was no need to seek the same just because the Paragraph 11 (2) of the Advocates (Remuneration) Order provides for the same. Lastly Counsel submitted that that the Reference is properly on record. He and urged the Court to dismiss the Preliminary Objection with costs.

Determination 9. From the material before this Court and the submissions by parties, there is no doubt that dispute herein hinges on interpretation of Paragraph 11 (1) and (2) of the Advocates (Remuneration) Order which 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 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 the judge by chamber summons, which shall be served on all parties concerned, setting out the grounds of his objection.”

10. Going by 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 having been filed before reasons were issued by the Taxing Master.

11. There is no doubt that the Advocate was dissatisfied with the Taxing Master’s decision contained in the ruling dated 14th October, 2022. The Advocate does not deny that he promptly received that ruling and that upon perusal, 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. ”

12. He was within the timelines for notifying the Taxing Master of his objection. Having chosen to object to the entire decision by the Taxing Master, the Advocate must have had reasons for that objection. There is nothing to show that letter seeking reasons was responded to. The circumstances in John Okuna Ogango (supra) are therefore different in that the Taxing Master therein had responded and indicated that the reasons for the taxation were contained in the ruling.

13. Parties are correct that 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.

14. That was the position in Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR that: -“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 reason …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 …”

15. Though the Advocate sought reasons, he filed a Reference a few days later. He does not say that he abandoned the request for reasons because the ruling was comprehensive and contained reasons. A perusal of the ruling however shows that it contains some reasons.

16. Perhaps it is important to point out that there should be no decision without a reason. The Taxing Master owes a duty to parties in a Bill of Costs to give reasons for each and every item taxed and this should be at the time of taxing any Bill of Costs. He should not to wait for such a request to be made simply because there is provision for such a request.

17. However, where such decision does not contain comprehensive or clear reasons, it is a legitimate expectation of the party requesting, that his request is responded to and expeditiously. To ignore such a request is unacceptable. Should the taxing master believe that the reasons are in the ruling, then his prompt response to the applying party should be exactly that.

18. 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."

19. I am persuaded that whether the reasons in the ruling are sufficient or not would not prevent the Advocate from filing the reference. The Advocate should not be thrown away from the seat of justice just because he has failed to wait for a response from the Taxing Master. The failure is not a jurisdictional 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 (VIRTUAL) AT KISII THIS 20TH DAY OF NOVEMBER, 2023. PATRICIA GICHOHIJUDGEIn the presence of:N/A for the AdvocateN/A for the ClientAphline, Court Assistant