[2022] KEHC 9845 (KLR)

Mugambi & another v Wangai (Civil Appeal 597 of 2012) [2022] KEHC 9845 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9845 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 597 of 2012

JK Sergon, J

July 8, 2022

Between

John N Mugambi

1st Applicant

Mugambi & Company Advocates

2nd Applicant

and

Kiama Wangai

Respondent

Ruling

1. The appellants/applicants herein have brought the notice of motion dated 21st January, 2022 supported by the grounds set out on the body thereof and the facts stated in the affidavit of John Mugambi. The applicant sought for the following orders:i.Spent.ii.Spent.iii.That this honourable Court be pleased to make a determination as to whether an already taxed bill of costs and settled in full can then be executed against each and every respondent in their individual capacity.iv.That in the alternative, the Honourable Court be pleased to make a determination as to whether a single ruling after taxation of a bill of costs can give rise to two different certificates of taxation against each respondent for settlement twice.v.That this honourable court be pleased to make a determination that the taxed costs arising from the ruling of Hon.F Rashid (as he then was) in his ruling dated 31st May, 2018 have been settled in full by the applicant.

2. In opposing the motion, the respondent swore a replying affidavit dated 8th February 2022.

3. The Motion was canvassed by way of written submissions.

4. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavits supporting and challenging it, and the contending written submissions and authorities cited.

5. A brief background of the matter is that the applicants herein did institute a suit against the respondent herein in the name of the 1st applicant and that of his firm seeking myriad reliefs as one single unit to which it underwent trial process resting with dismissal of the appeal with costs to the respondents on the 6th October 2017.

6. Returning to the Motion, advocate John Mugambi in his affidavit in support stated that upon dismissal of the instant appeal with costs the respondent herein out of misdirection ,ignorance of law and disregard of the rules of procedure decided to separate the parties to the present suit by filing two separate Bill of costs for assessment as against one John Mugambi as a single unit and Mugambi & Company Advocates as a separate unit, all with the sole aim of deriving a benefit unjustly and unfairly.

7. The applicants aver that the two separate bill of costs were presented in court before the taxing master Hon. Rashid (as he then was) for the purposes of taxation and to whom upon accurate consideration of the two bills and a ruling delivered on 31st My 2018 allowing the taxed costs at Kshs.94,425/= as a single taxation and that the amount has since been fully paid.

8. The applicant in its submissions contend that the respondent herein through unknown means went ahead and prepared two certificates of costs and presented the same for execution by the Deputy registrar and the end result was the issuance of two certificates of costs one in the name of the 1st applicant and the 2nd applicant most probably through non-disclosure by the respondent of material facts.

9. On this the applicant relied on the case of Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited (2017) eKLR the learned bench faced with a scenario where an advocate acts for two or more parties in a suit, and party and party costs are granted in his clients favour, the established practice is that such an advocate can only claim and receive instruction fees once ,the advocate cannot tax party and party costs separately for each party and in upholding the decision of the High court to strike the second bill of costs arising from the same transaction“In our view, the respondent instructed the appellant to protect its interest as an insurer by representing the defendants in the suit. In doing so, the respondent engaged the appellant to act on its behalf in a single transaction, that is, protect its interest in the suit. Moreover, the liability of the 2nd defendant automatically gave rise to the liability of the 1st defendant and by extension to the respondent’s liability under the insurance contract. Thus, it would be unconscionable for the appellant to charge the respondent twice for the same transaction”

10. In reply, the respondent avers the applicants did not challenge the certificate of costs as required by law, which would have required filing the necessary references if he was aggrieved and there is no other way to challenge a certificate of taxation, and no reference has been filed to date. This ruling, which directed the applicants to pay the remaining amount of Kshs. 94,425/= within 14 days, is still being disobeyed by the applicants.

11. The respondent cited Section 51 (2) of the Advocates Act states that:“the certificate of the taxing officer by whom any bill has been taxed shall unless it’s set aside or altered by the court be found as to the amount as the costs correctly thereby”

12. The respondent argued the same issue before the deputy registrar, who rendered a ruling ordering the applicants to pay the remaining sum of Kshs. 94,425/=. The applicants did not submit an appeal against the aforementioned ruling but instead requested the certificate of costs be left alone in their application.

13. In the instant case,the primary issues raised by the applicant are whether the taxing officer correctly carried out his duties in taxing the two bills and whether the respondent has the right to submit two distinct bills of costs resulting from the same set of transactions.

14. I need not belabor the point that the law is that Article 159 of the Constitution should not be used as a panacea for all ills and omissions in approaching the court. Procedural law also serves a useful purpose in the attainment of fair trial or hearing in judicial proceedings. The application before me seeks for three significant orders, to wit; (1) that the whether an already taxed bill of costs and settled in full can then be executed against each against each respondent in their individual capacity and (2) whether single ruling after taxation of a bill of costs can give rise to two different certificates of taxation.

15. Even issues of non-service or that the taxation proceeded ex parte in circumstances it should not have, are matters falling under the process of a Reference and under paragraph 11 of the Advocates (Remuneration) Order. For instance see the decision by Ringera J (as he then was) in the case ofMachira & Co. Advocates vs. Magugu [2002] 2 EA 428 that:-“As I understand the practice relating to taxation of bills of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a Reference to a judge in accordance with paragraph 11 of the Advocates Remuneration Order.”

16. See also the decision of court in the case of Gacau Kariuki & Co. Advocates Vs. Allan Mbugua Ng’ang’a Misc. Application No. 678 of 2011, where the Hon. Mr. Odunga declined to set aside the decision of the Taxing Officer on account of failure by the Applicant to file a Reference. The Learned Judge expressed himself more succinctly as follows:“I must make it very clear that what is before me is not a reference from taxation but an application seeking to set aside the orders made on 29th day of September 2011 and 27th day of October 2011. The orders, which were made on 29th day of September 2011, were made by the Deputy Registrar when in her capacity as the Taxing Master taxed the Bill as presented. What is the procedure for challenging such a decision? In my view the only available recourse to a person aggrieved by a decision of a taxing officer is to lodge a reference. Where a person discovers the fact of taxation after the time stipulated as it is alleged herein paragraph 11 (4) of the Advocates Remuneration Order empowers the court to extend time. It has been said time and again that where there is a specific procedure provided for addressing a grievance that procedure should be strictly complied with. (Underlining added)

17. I agree with the arguments by the respondent that the application, but all the grounds set out or argued in the application relate to and befits a Reference. In the case of Pyaralal Mhand Bheru RajputvsBarclays Bankandothers Civil Case No. 38 of 2004 on Omni-bus applications may be vindicated in the circumstances of this case, when he stated that;“There is no doubt the application is an all-cure, omnibus application. It is a wide net cast over a large body of water, and out of all the lake or sea, creatures caught in it, there will be one or two edible crabs or fish. It is not quite so. An omnibus application is incapable of proper adjudication by the court for each of the reliefs sought apart from being governed by different rules, is also subject to long established and different judicial principles which counsel need to bring to the attention of, and the court needs to consider before granting the entire relief sought. This alone makes the plaintiff’s application incurably defective, and a candidate for striking out.”

18. Accordingly, the application dated 21st January 2022 is without merit. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ...........................J. K. SERGONJUDGEIn the presence of:........................... for the 1st Applicant........................... for the 2nd Applicant........................... for the Respondent