[2004] KEHC 2540 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

MISC CIVIL APPLICATION 373 OF 2003

IN THE MATTER OF: THE ADVOCATES (REMUNERATION) ORDER

IN THE MATTER OF: APPLICATION by M/S MUTISYA & CO ADV AGAINST TAXATION OF ADVOCATES/CLIENT BILL OF COSTS IN MSA MSC CIVIL APP NO. 373/03

BETWEEN

MUTISYA & CO ADVOCATES …………………………………………………………….... APPLICANT

VERSUS

LAZARO OMITA NYAGOL ………………………………………………………………… DEFENDANT

R U L I N G

This application is by way of reference under paragraph 11(2) of the Advocates (Remuneration) Order, hereinafter the Order, which is under the Advocates Act (Cap 16), the Act. The relevant parts of that paragraph read:

“11. (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.”

The paragraphs and schedules appended to this Order fall under Section 48 of the Act and by the whole regime put in place, remuneration of an advocate either on an advocate – advocate basis or advocate – client basis is worked. Under this, the taxing officer exercises a wide discretion while taxing bills of costs which discretion is largely respected when it comes to dealing with an application of objection like this – only to be interfered with if it is shown that the taxing officer ignored or deviated from the law procedure and principles governing taxation. Here the court was told that the two suits involved were in the subordinate court but the costs in them came for taxation because they involved advocate – client. Otherwise advocate – advocate costs in that court are simply assessed there.

Mr. Bosire for the applicant/advocate told the court that the whole thing was set off when the advocate took instructions in a running down case and filed MSA SRMCC 644/98 in the lower court on behalf of the respondent Lazaro Nyagol. Judgement was rendered but it became necessary again to take instructions and file a declaratory suit SRMCC 802. 02 to have the motorist’s insurer to satisfy the judgement in No. 644/98. That after doing all that the advocate/applicant then filed bills of costs to be taxed against his client, Lazaro, so that he could recover his costs.

The present chamber summons prays that the court do hear and determine the applicant’s objection to the taxing officer’s decision regarding the bill of costs in HC MSC APP No. 373/03 on the grounds that:

(a) The taxing officer erred in finding that MSA SRMCC 644/98 and MSA SRMCC 802 were one and the same in the result that advocate – client costs woul d not be charged separately.

(b) That she erred in finding items 1 and 2 of the bill were covered under instruction fee.

(c) Further that she erred in taxing item 4 at Ksh. 18,000/= while the minimum provided for was Sh. 27,000/=

(d) And that it was in error for the taxing officer to strike out and tax off items:

3,7,8,12,13,14,19,20,21,22,23,25,29,30,31,32,34,35,36,37,40,41 and 46 which items fell either to be taxed under Schedule V or Schedule VII of the Order.

But Mr. Edward Otieno holding general power of attorney donated by the respondent Lazaro Nyagol and duly registered, did not agree with the applicant. He began by explaining that he held this power from his uncle Lazaro, who had since the accident (see SRMCC 644/98) had relocated to Migori on the other side of Kenya and so he took on the matter on behalf of the respondent. In other words Mr. Otieno was the respondent’s recognised agent. The court is obliged to state the circumstances in order to satisfy itself that situations are not created whereby invoking Order 3 r 1 CPR some idlers, busybodies, conmen and other undesirables come to court, pretending to be recognized agents on behalf of some litigants only to make money or for other reasons, only to throw legal and judicial process in a messy confusion and chaos. Such characters, definitely not coming to court to contribute to the interests of justice, should be kept out even if the law does not allow the court to vet them. But it has a duty to ensure and only recognize agents appearing for a litigant, to be there to contribute to the interest of justice in any given matter and not otherwise.

Mr. Otieno the respondent’s agent fell in the proper category and argued his case with considerable insight and appreciation approximating to a person with some legal training. He drew the court’s attention to the fact that this reference only involved civil suit 644/98 whose bill of costs was MSC APP No. 373/03 filed on 23. 5.03 and that is all that was before this court. That the court should not entertain anything in respect of SRMCC 802/00 to which allegedly a bill of costs was filed as MSC APP No. 484/03. Mr. Bosire did not refute or clarify this omission or other and this court agreed that only the bill of costs in No. 373/03 had been filed, served and taxed as regards civil suit 644/98; and that alone has been a subject of reference on the present application. Indeed the ruling which the taxing officer rendered after receiving the noticed objection spoke of MSC App No. 373/02 in the matter of MSA SRMCC 644/98. Mr. Otieno added that had the applicant similarly served a bill of costs regarding SRMCC No. 802. 02 the respondent would have met it. Accordingly the court found that the arguments here by the applicant involving SRMCC 802/02 (and the claimed MSC app No. 484/03)were misplaced and/or premature.

The other point which the respondent took up and had considerable merit regarded the items to which the applicant objected after taxation of the bill in MSC App 373/03. That while the applicant in his notice to taxing officer dated 14. 8.03 stated fewer items objected to after taxation, this application had more thereby falling foul of paragraph 11(1) of the Order (see above.) The court accepted this argument. Looking at the above said notice and the items stated in this application, the following items were not put to the taxing officer to give reasons and answer objections to them: 7,8,12,14,19,20,22,30,31 and 41. Accordingly there was no objection to them and they should not have been placed before this court for a determination.

The applicant did not in any case explain while his items in the notice to the taxing officer did not tally with those included in the present application. Those “extra” items are struck out not to be considered here. Let us now turn to paragraph 22 of the Order which the respondent read out and sought to use as a shield against the applicant’s move to have some items taxed under Schedule V when they were not provided for under Schedule VII. On his part Mr. Bosire for the applicant pointed out that that move was proper. The paragraph reads:

“22. (1) In all cases in which any other Schedule applies an advocate may before or contemporaneously with rendering the bill of costs drawn as between advocate and client, sig nify to the client his election that instead of charging under such Schedule, his remuneration shall be according to Schedule V, but if no election is made his remuneration shall be according to the scale applicable under the other Schedule. (2) ……………………………………..”

Mr. Otieno for the respondent was of the view that the applicant had presented the bill of costs herein under Schedule VII and yet he had sought same items to be taxed under Schedule V eg items 30, 35,40 (letters to the respondent) and 46 (getting up fee) – all without electing and notifying/signifying to the client (the respondent). The court heard that the absence of such notification in essence meant that the items alluded to were not properly presented for taxation and were therefore properly struck out.

Mr. Bosire had a different view in the light of the opening note to Schedule V:

“FEES IN RESPECT OF BUSINESS THE REMUNERATION FOR WHICH IS NOT OTHERWISE PRESCRIBED OR WHICH HAS BEEN THE SUBJECT OF ELECTION UNDER PARAGRAPH 22”

The court considering both views above concluded that for any items that costs fell to be paid but were not provided for under Schedule VII, they were properly put forth under Schedule V and the taxing officer was obliged to consider them and tax according to her discretion as such and not strike them out altogether. Paragraph 22 applies when an advocate knowing that there exists a Schedule under which his remuneration ought to be charged opts out of it altogether and elects/decides instead to get remunerated wholly under Schedule V. In such a case he will notify his client in advance or at the same time as he files his bill of costs. Accordingly the respondent’s stand on this point was wrong. Anyway holding the way the court has held does not derogate from the insert of paragraph 51 of the Order at all.

While Mr. Bosire told the court that the money (paid in the suit [s]) had been deposited in court, the respondent argued that the applicant kept the money first for one and half years and now it is deposited where it does not benefit him at all. The court noted all that. However subject to what arguments the court accepted or rejected as set above, it is directed that a properly drawn bill of costs be filed and taxed in the next 28 days.

In the circumstances the costs of this application/reference go to the respondent.

Orders accordingly.

Delivered on 21st April 2004

J MWERA

JUDGE