[2022] KEHC 11556 (KLR)

Mugi t/a Mamicha & Co. Advocates & another v Spire Bank Limited (Civil Case E032 of 2021) [2022] KEHC 11556 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11556 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Case E032 of 2021

TW Cherere, J

May 19, 2022

Between

Martin Mamicha Mugi t/a Mamicha & Co. Advocates

1st Plaintiff

Wilfred Ngunjiri Nderitu t/a Nderitu & Partners Advocates

2nd Plaintiff

and

Spire Bank Limited

Defendant

Ruling

1. By a plaint dated December 1, 2021filed on December 2, 2021, plaintiffs seek the following orders against the defendant:1. Kshs. 36,151,518. 66 being legal fees and disbursements due inclusive of interest computed as at 30th November, 20212. Further interest at 14% per annum from 01st December, 20213. Costs of the suit4. Interest on the costs until payment in full5. Any other relief the court may deem fit to grant

2. Subsequent to the filing of the plaint, the plaintiffs on January 10, 2022filed a Notice of Motion datedJanuary 7, 2022seeking similar orders as the ones in the plaint.

3. The application is supported by an affidavit sworn by the 2nd plaintiff on 07th January, 2022 in which he avers that the defendant is truly indebted to the plaintiffs.

4. By a replying affidavit sworn on April 14, 2022, John Wageche, a Senior Legal Officer of the defendant avers that Defendant’s defence that 2nd Plaintiff has never been instructed to act for the Defendant and that references to the taxed bills of costs are still pending and further that the bills of costs were not served on the Defendant.

5. In response to the replying affidavit, the 2nd Plaintiff has by a supplementary affidavit sworn on 04th May, 2022 maintained that he was appointed by the Defendant. He additionally avers that no reference was filed concerning taxation of bills in Meru Misc. Application Nos. 139 and 140 of 2018 and that leave to file a reference in Meru Misc. Application No. 141 of 2018 out of time was dismissed by an order dated 30th September, 2021. Annexed to the affidavit are various correspondences between the parties in which the issue of whether or not the 2nd Plaintiff was instructed features prominently.

Analysis and Determination 6. The basis of theplaintiffs’ application is that the defendants’ defence is a bare denial which ought not to stand considering that bills of costs in respect of the claimed sums have been taxed in their favour and defendant did not deny having instructed the 2nd plaintiff.

7. Defendant while conceding that it instructed the 1st plaintiff contends that it did not instruct the 2nd plaintiff and that the application is premature for the reason that references are still pending.

8. I have considered the notice of motion in the light of the evidence pleadings and submissions by the plaintiffs and the cited authorities and I have deduced the following issues for determination:1. Whether references to the taxed bills of costs are still pending2. Whether the 2nd plaintiff was instructed to act for defendant3. Whether a case has been made out for entry of judgment against defendant1. Whether references to the taxed bills of costs are still pending

9. I have had a chance to peruse in Meru Misc. Application Nos. 139, 140 and 141 of 2018 that gave rise to this case. The Bill of Costs in Meru Misc. Application Nos. 139 of 2018 was taxed for Kshs. 619,350/- on 20th June, 2019. An application dated October 11, 2019 seeking leave to file a reference out of time was withdrawn by a notice dated 04th November, 2019 filed on 06th November, 2019. The Bill of Costs in Meru Misc. Application Nos. 140 of 2018 was taxed for Kshs. 615,007/- on June 20, 2019 and similarly, an application dated October 11, 2019 seeking leave to file a reference out of time was withdrawn by a notice dated 04th November, 2019 filed on November 6, 2019. The Bill of Costs in Meru Misc. Application No. 141 of 2018 was taxed at Kshs. 24,376,652. 50 cts on March 4, 2021 and an application to file a reference out of time was dismissed by an order dated September 30, 2021.

10. From the foregoing therefore, it is apparent thatdefendant’s contention that references to the taxed bills of costs are still pending is mistaken.2. Whether the 2nd plaintiff was instructed to act for defendant

11. The issue of a disputed retainer was discussed by the Court of Appeal in Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] eKLR where the court stated as follows:‘The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Officer by law. It is derived from the Advocates Act and the Advocates Remuneration Order. The Taxing Officer sits in taxation as a Judicial Officer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists.

12. The Court further rendered itself as follows:“As a Judicial Officer sitting to tax a bill of costs between an advocate and his or her client, a taxing officer must determine the question whether he/she has jurisdiction to tax a Bill if the issue of want of advocate/client relationship is raised (emphasis added).”

13. From the foregoing holding, there is no doubt that the issue of retainer ought to have been raised for determination by the Taxing Master. Defendant had an opportunity to raise the issue and the record of the proceedings before the Taxing Masters in the 3 matters discloses that that issue was not raised.

14. Having not raised the issue of retainer before the Taxing Master, Defendant cannot be permitted to do so before this court for the reason this court lacks jurisdiction to determine the issue of retainer except in instances where the decision of the Taxing Master on the said issue is raised by way of a reference (See MV Lilian S” [1989] 1 KLR). As clearly pointed hereinbefore in this ruling, there is no pending reference/s and this court is therefore non- suited to determine the issue of retainer in an application for judgment on taxed costs.

3. Whether a case has been made out for entry of judgment against defendant

15. The basis of the plaintiffs’ application is that the 1st and 2nd defendants’ defence is a bare denial which ought not to stand considering that bills of costs in respect of the claimed sums have been taxed in their favour.

16. The procedural law on entry of judgment on taxed costs is to be found under the provisions of section 51(2) of the Advocates Act which provides that;“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the court, be final as to the amount of the costs covered thereby, and the court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs”.

17. In the case of Lubulellah & Associates Advocates vs N. K. Brothers Limited [2014] eKLR the court observed that;“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs ……..”.

18. My understanding of section 51 (2) of the Act is that an order for judgment on taxed costs must be preceded by a certificate of costs issued by the Taxing Master verifying the amount due as costs.

19. Whereas there is evidence that bills of costs in Meru Misc. Application Nos. 139, 140 and 141 of 2018 that gave rise to this case have been taxed and there are no pending references, no certificates of costs have been issued. I therefore find that and the application for judgment on the taxed costs is premature.

20. Consequently, the plaintiffs’ notice of motion dated January 7, 2022 and filed on January 10, 2022 is disallowed.

21. Finally, the practice has been that once a certificate of costs is issued, the party in whose favour the bill is taxed ought to apply for judgment in the same matter that the bill has been taxed. It is therefore not necessary to file a separate suit for costs as did the plaintiffs in this case. Is it therefore expected that the plaintiffs will comply with this practice to avoid a situation that exposes the parties to unnecessary costs.

22. Having said that, I order that this file be closed with each party bearing its own costs.

DATED IN MERU THIS 19 th DAY OF May 2022WAMAE. T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Plaintiffs - Mr. Nderitu for M/S. Nderitu & Partners AdvocatesFor Defendant - Mr.Mugo for M/S C.K.Nyoro & Co. Advocates