[2022] KEHC 27063 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

MISCELLANEOUS CIVIL CASE NO. E035 OF 2021

M/S OGUTTU, OCHWANGI, OCHWAL & CO, ADVOCATES....................................APPLICANT

VERSUS

CHARLES OCHORO RABACH.....................................................................................RESPONDENT

RULING

1. M/S Oguttu, Ochwangi, Ochwal & Co, Advocates, the applicant herein moved the court by way of Chamber Summons dated 17th September, 2021. It was brought under Rule 2 & 11 (1) (2) (2) of the Advocates (Remuneration Order), section 1A, B [sic] & 3A of the Civil Procedure Act and Articles 159 & 165 of the Constitution of Kenya. The applicant is seeking the following orders:

a) The Honourable court be pleased to review, revise and/or vary the decision of the Honorable Taxing Master rendered and/or delivered on the 31st day of August 2021 and in particular, the decision relating item 1 and reduction of the taxed costs with (sic) kshs.96,000/-.

b) the honorable court be pleased to review, revise and/or rescind the amount of costs vide the decision of the honourable Taxing Master rendered and/or delivered on the 31st day of August, 2021, in favour of the advocate/applicant.

c) The honourable court be pleased to award unto the advocate/applicant such costs as accords with the Advocates (Remuneration) Amendment Order, 2014.

d) Consequent to prayer (3) herein above being granted, the honourable court be pleased to substitute the certificate of costs issued pursuant to the decision of the Honorable Taxing Master rendered on the 31st day of August 2021 with a new certificate, reflecting the correct costs payable unto the advocate/applicant.

e) Costs of this application be borne by the client/respondent.

2. The application was premised on the following grounds:

a) The respondent herein has been a long time client of the applicant herein same having been represented by the applicant vide Kisii HCC no.235 OF 2013 (Later Migori ELC No.374 of 2018) Charles Ochoro Rabach vs. Moses Mogere and Kisii ELC No. 173 of 2014 (later Migori ELC No.374 of 2017) the suit therein being consolidated.

b) Sometimes on the 21st July 2020, the respondent’s sons visited the applicant’s chambers suited at Mocha Place 3rd Floor in Kisii town whereby same sought for legal consultation in regards to a new case that had been lodged against the respondents herein vide Oyugis PMC ELC Case No.30 of 2020.

c) Pursuant to the consultation therein, the respondent’s sons namely Mr. Okumu Ochor and Mr. Otieno Ochor were advised that the mandatory deposit of professional fees would be kshs.100,000/- only to be paid up front.

d) However the respondent’s sons whom are well known to the applicant by virtue of the previous court cases that had been handled by the applicant, pleaded for more time to raise the professional fees and requested to be assisted by lodging the requisite pleadings in court.

e) Consequently, out of good faith, the mutual trust and cordial interaction between the applicant and the respondent herein, the applicant proceeded to lodge the necessary pleadings in court vide Oyugis PMC ELC case NO.30 OF 2020 on the 27th July 2020.

f) On the other hand, the applicant expected the respondent herein to pay the requisite fees as advised but same was not forthcoming.

g) As a result of the delay in remitting the requisite professional fees requested for by the applicant, the applicant wrote a correspondence to the respondent reminding same to deposit the professional fees with the applicant as agreed.

h) To the surprise of the applicant herein, the respondent herein declined and/or refused to heed to the request of payment of the professional fees on grounds that same did not instruct the applicant herein in the said matter.

i) In particular, it was alleged by the respondent that same had instructed the firm of Nyagaka S.M. & Co. advocates to act for him in the said matter.

j) Pursuant to the allegations and/or change of heart by the respondent, it behooved the applicant herein to lodge an advocate-Client Bill of Costs dated 10th September, 2020 vide HOMABAY HIGH COURT MISC. CIVIL APPLICATION NO. E001 OF 2020.

k) For clarity, the respondent herein opposed the said Bill of Costs and annexed various receipts emanating from the applicant’s law firm which receipts were in regards to payments of professional fees in a concluded case to wit MIGORI ELC NO.374 OF 2017.

l) For coherence, the fees payable to the Applicant vide MIGORI ELC NO. 374 of 2017 were not subject to taxation and/or deliberations before the Deputy Registrar and/or Taxing Master.

m) Consequently, the advocate-client Bill of Costs vide HOMABAY HIGH COURT MISC. CIVIL APPLICATION NO.E001 OF 2020 was taxed on the 31st August 2018 whereby the Taxing Master taxed the Bill of Costs at kshs.112, 847/- only and thereafter (sic) proceeded to order a dedication of kshs.96,000/- only, from the taxed costs.

n) Interestingly, the Taxing Master gave reasons for deduction of the kshs.96, 000/- only from the taxed costs of kshs.112, 847/- only that the respondent herein had paid to the applicant kshs.96, 000/- as professional fees and thus the amount due and or/payable to the applicant was kshs.16, 847/-.

o) For coherence, the kshs.96,000/- only allegedly presumed paid by the respondent was in respect of the case vide MIGORI ELC NO.374 OF 2017 and not OYUGIS PMC ELC CASE NO.30 OF 2020 thus the Taxing Master misdirected and/or erred in arriving at his decision dated 31/August 2021.

p) Pursuant to the taxation and issuance of Certificate of Costs, applicant filed and/or a notice of objection to taxation.

q) The notice of Objection was lodged and/or filed within the 14 days of the Taxation.

r) The Taxation of the applicant’s Bill of Costs was wrought and/or fraught with errors of principles.

s) In the premises, the award of costs in favor of the advocate/applicant was/is contrary to the applicable Advocates Remuneration Order.

t) In the foregoing, there is need for the Honorable court to grant the orders sought as the Ruling of the Taxing Master vide Homa Bay High Court Misc. Civil Application NO.E001 OF 2020 was misdirected, unfair, slanted and/or misconceived.

u) In the premises, the Certificate of Costs, is erroneous and amounts to an error in principle.

v) Consequently, the Certificate of Costs, ought to be revised and/or adjusted.

w)In any event, the instant Application abides with the provisions of Section 1A, 1B and 3A of the Civil Procedure Act, Chapter 21, Laws of Kenya and Paragraphs 2 and 11(1) & (2) of the Advocates (Remuneration) order.

x) It is in the interest of Justice that the instant reference be allowed.

y) Neither of the parties herein shall suffer prejudice, whatsoever and/or howsoever.

3. The respondent opposed the application.

4. Rule 11 (1) & (2) of the Advocates (Remuneration Order) provides as follows:

(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.

5. The ruling of the learned Deputy Registrar was delivered on 31st day of August, 2021. The applicant contended that he sought for reasons and none was forthcoming. There was no document that support this contention that was exhibited. It is therefore safe to conclude that the applicant did not give Notice of Objection to Taxation of Costs as required under Rule 11 of the Advocates (Remuneration Order). Consequently, no reasons were supplied to them. The only document the applicant exhibited was a certified copy of the ruling and which was supplied.

6. I therefore find that the reference is improperly before the court. I accordingly dismiss it with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 17TH DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE.