[2022] KEHC 14421 (KLR)

Mwangi Keng’ara & Company Advocates v Mungai (Miscellaneous Application E314 of 2021) [2022] KEHC 14421 (KLR) (Commercial and Tax) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14421 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E314 of 2021

WA Okwany, J

October 13, 2022

Between

Mwangi Keng’ara & Company Advocates

Advocate

and

Zipporah Mungai

Client

Ruling

1. This ruling is in respect to two applications; the client’s reference dated November 10, 2021 and the Advocates application dated November 17, 2021.

Application Dated November 10, 2021. 2. The client filed the reference dated November 10, 2021 seeking the following orders:-a.The Ruling and Taxation of the Taxing Master delivered on October 26, 2021 be set aside.b.The Bill of Costs dated April 29, 2021 be struck out.c.In the alternative that this Honourable Court be pleased to remit the Bill of Costs dated April 29, 2021 for fresh taxation, with directions on the conduct of the taxation.d.The costs of this Application be provided for.

3. The application is brought under Rule 11 of the Advocates Remuneration Order (ARO) and is supported client’s affidavit and based on the following grounds:-I.The Applicant objects to the assessment of items 1, 16, 17, 18, 19, 20, 21, 22, 23 and 34 of the Bill of Costs dated April 29, 2021. II.The Taxing Officer fell into an error of principle by failing to appreciate that an incompetent pleading filed before a Court that lacked jurisdiction could not be the basis of a lawful claim for fees under the Advocates Remuneration Order.III.The Taxing Officer fell into an error of principle by holding that he had no jurisdiction to ascertain the lawfulness, competence and validity of the Bill of Costs before him when the same was admittedly founded on an incompetent pleading filed in a Court that lacked jurisdiction.IV.The Taxing Officer fell into an error of principle when he found as a matter of fact that the pecuniary jurisdiction of the Subordinate Court was Kshs 20,000,000 and still proceeded to consider the Advocates Bill of Costs dated April 29, 2021 filed in respect of services rendered by the Advocates in Nairobi CMCC No 4672 of 2019 in which the Advocate filed a suit claiming a sum of Kshs 25,667,802. 80. V.That the Taxing Officer fell into an error of principle when he unilaterally and without an application to that effect being made revised the value of the subject matter from Kshs 25,667,802. 80 to Kshs 20,000,000 in order to confer upon himself the requisite jurisdiction to tax the bill.VI.The Taxing Officer fell into an error of principle when he failed to appreciate that Nairobi CMCC No 4672 of 2019 was referred to Arbitration for hearing and determination and an Arbitral award having been made, the Taxing Officer was precluded from having recourse to the pleadings for purposes of ascertainment of the value of the subject matter of the claim.VII.The Taxing Officer fell into error of principle when he failed to appreciate the taxing principle propounded in Nairobi Court of Appeal Civil Appeal Number 328 of 2017, Peter Muthoka -vs- Ochieng Onyango Kibet & Ohaga and elevated the decision of First American Bank of Kenya —vs- Shah & another [20021 IFA to a fetish.VIII.The Taxing Officer fell into an error of principle vChen he failed to appreciate that to allow instruction fees in respect of Nairobi CMCC No 4672 of 2019 and allow instruction fees in respect of the Arbitral proceedings arising out of the same subject matter would amount to duplication of fees in respect of one instruction to the great detriment of the client.IX.That the Taxing Officer fell into an error of principle when he failed to appreciate that no Statement of Defence was filed in Nairobi CMCC No 4672 of 2019 and under schedule 7(1)(a), the instruction fees if any ought to have been reduced to 65%, that is Kshs 351,000. X.That the Taxing Officer fell into an error of principle when he found that he had no jurisdiction to deal with the client's Notice of Motion dated May 21, 2021 and instead of referring the same to the High Court, proceeded to dismiss the same.XI.The Taxing Officer proceeded on mistaken principles and consequently failed to exercise his discretion judicially as to justify interference by this Honourable court.

4. The advocate opposed the application through her replying affidavit wherein she states that she acted for the client in Milimani CMCC No 4671 of 2019 and on an appeal where the subject matter was a liquidated sum.

5. The reference was canvassed by way of written submissions.

6. I have considered the reference and the rival arguments made by the parties. The main issue for determination is whether the taxing officer erred in principle when taxing the Bill of Costs.

7. It is trite that the court will only interfere with the decision of the taxing Master where there is an error of principle. In Machira & Co Advocates vs Magugu [2002] 2 EA where 428 Ringera J (as he then was)held 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.”

8. Similarly, inKipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board[2005] eKLR the Court of Appeal held as follows:-“On reference to a judge from the taxation by the taxing officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs.”

9. From the above cited cases, it is clear that the court will not interfere with the findings of the taxing officer unless there is an error in principle. The client contended that the taxing officer erred in principle in failing note that the pleadings filed by the advocate were incompetent and that the advocate was therefore not entitled to claim of fees.

10. The advocate, on the other hand, maintained that she acted for the client and was therefore entitled to the taxed costs.

11. I note that the taxing officer referred to the decision in the case of Wilfred N Konosi t/a Konosi & Co Advocates vs Flamco Limited [2017] eKLR in establishing her and held as follows: -“From the decision above, my role as a taxing officer in a bill before me is first to establish whether there was an Advocate/Client relationship and whether there were instructions from the client to the Advocate. Once these two issues are ascertained, I have no business as a taxing officer to delve in any other issue.”

12. On the issue of whether the advocate filed an incompetent suit, the taxing office found that the said issue could only be addressed by a Judge after costs are ascertained.

13. In assessing the instruction fees the taxing master observed that;“Instructions fees shall be on the maximum pecuniary jurisdiction of the court which is Kshs 20,000,000. ”

14. The taxing master then proceeded to tax the Bill of Costs on the instructions fees and cost of other services.

15. My finding is that the taxing officer competently addressed all the issues that were presented before her for determination and applied the correct schedule in taxing the costs. I do not find any error in principle in the taxation as the taxed amount is not too high to amount to unjust enrichment.

16. In the upshot I find that the application dated November 10, 2021 lacks merit and I therefore dismiss it with costs to the respondent.

Application Dated November 17, 2021 17. Through the application dated November 17, 2021 the Advocate seeks the following orders for:-1. Entry of judgment against the client/respondent in favor of the applicant for a sum of Kshs 980,621/= as awarded in the Certificate of Taxation Dated November 15, 2021. 2.Interest on the taxed costs of Kshs 980,621/= at the rate of 14% per annum with effect from June 23, 2021 until payment in full.3. That the costs of this Application be awarded to the Advocate/ Applicant.

18. The application is supported by the affidavit of the advocate Mercy Nduta Mwangi and is based on the following grounds:-1. That the applicant's advocate/client costs were taxed on November 5, 2021 at a net sum of Kshs980,621. 00/=.2. That the applicant complied with rule 7 of the Advocates Remuneration (Amendment) Order, when she issued to the Client a notice to levy interest on unpaid Legal fees at the rate of 14% per annum until payment in full.3. That the applicant has been denied the use of her lawfully earned fees and it is only fair and just that interest be awarded on the taxed costs at the prescribed rate of 14% per annum until payment in full.4. That, a demand to pay the taxed costs and interest was issued to the Respondent on October 26, 2021 to no avail.

19. The Client opposed the application on the basis that she had filed a reference to set aside the certificate of taxation.

20. The main issue is whether judgment should be entered against the respondent/client in terms of the Certificate of Taxation.

21. Section 51(2) of the Advocates Act stipulates as follows:-“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 recovered thereby; and the court may make such order in relation thereto as it thinks fit, including where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

22. In 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. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on November 25, 2012. ”

23. In the present case, this court has already found that there was no error of principle in taxing the bill of costs. I therefore find that the advocate’s application is merited. I allow the application as prayed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2022. W. A. OKWANYJUDGEIn the presence of: -Ms Mwangi for the Advocate/ApplicantMr. Masese for the Client.Court Assistant- Sylvia