[2023] KEHC 25234 (KLR)

Mwangi Keng’ara & Co Advocates v Invesco Assurance Company Limited (Miscellaneous Civil Application 263 of 2013) [2023] KEHC 25234 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25234 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application 263 of 2013

MW Muigai, J

November 6, 2023

Between

Mwangi Keng’Ara & Co Advocates

Applicant

and

Invesco Assurance Company Limited

Respondent

Ruling

Background 1. Vide a ruling delivered by this Court on May 11, 2023 on a application filed on January 11, 2022, in which the Applicant sought orders That : the time for filing a reference against the ruling delivered on December 9, 2020 by the honourable taxing officer be enlarged and the chamber summons be deemed as properly filed; the ruling dated December 9, 2020 be set aside in its entirety and the advocate client bill of costs dated November 11, 2013 be remitted for re-taxation under schedule 5 part 2 before the other taxing officer; the cost of this reference be awarded to the Advocate /Applicant.

2. The application was canvassed by way of submissions. The court having considered the parties’ submissions, allowed the Applicant’s application by enlarging the time to file reference under order 50 rule 4 CPR 2010, the reference was deemed as duly filed.

The Reference 3. Vide the reference dated January 11, 2022 and filed on January 11, 2022 , the applicant sought the following orders: -a.That the ruling dated December 9, 2020 be set aside in its entirety and the Advocate Client Bill of costs dated November 11, 2013 be remitted for re-taxation under schedule 5 part 2 before any other taxing officer.b.That the cost of this reference be awarded to the advocate or applicant.

4The reference was supported by the affidavit of Mercy Nduta Mwangi in which affidavit she deposed that an advocate/client Bill of Costs dated November 11, 2013 on the November 12, 2013 seeks taxation of legal fees for services rendered in Machakos Senior Resident Magistrate’s Court Civil Case No 225 of 2003, Anastasia Mwikali Kimani v Kimos Transport Company Limited & anor. That the applicant filed a Notice of election under section 48 of the Advocate’s Act, and rule 22(1) of the Advocates Remuneration Order to proceed with taxation under schedule 5 part 2 simultaneously with the bill of costs on November 12, 2013.

5. He stated that over and above the separately filed notice of election under the applicant endorsed the election to proceed with taxation under schedule 5 part 2 on the heading of the advocate/client bill of costs;

6. The learned taxing officer delivered a ruling on December 9, 2020 wherein he held that Schedule 7 was the applicable scale in total disregard of the duly filed election under rule 22(1) of the Advocates Remuneration Amendment Order and the Advocates’ submissions in support of the Bill of Costs July 22, 2014 and that was no legal basis for the taxing officer to apply schedule 7 given that the client’s had not raised an objection on such a ground and in the face of the Applicant’s compliance with the law.

7. She deposed that she filed an objection dated December 21, 2020 under rule 11 of the Advocates Remuneration Order which the taxing officer has failed to respond to.

8. The applicant deposed that the ruling dated December 9, 2020 is wholly unjust and ought to be set aside in its entirety.

9. The matter be canvassed by way written submissions.

Submissions Submissions on the Applicant’s Chamber Summons 10. The applicant averred that the main issue for determination is:-a.Is there an error of principle in applying schedule 7 instead of schedule 5 of the Advocates’ Remuneration Order to the taxation?

11. Reliance was made on the case of Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 492 where the Court of Appeal buttressed the point of when the Court can interfere with the taxing officer’s decision.

12. It was submitted that the learned taxing master erred in principle as she misinterpreted and misapplied the law as contained in schedule 5 part 2 as the applicant filed a notice under section 48 and rule 22(1) dated November 11, 2013 at the same time as the advocate /client bill of costs dated November 11, 2013. The election also forms part of the heading of the Advocate/Client Bill of costs. The Notice dated November 11, 2013 was served simultaneously with the bill of costs on January 27, 2014 and that rule 22(1) was fully complied with and the Court was therefore bound to apply the provisions of schedule 5 in the taxation of the bill of costs dated November 11, 2013.

13. Reliance was placed in the case of Anthony Thuo Kanai T/A A Thuo Kanai Advocates v John Ngigi Ng’ang’a [2014] eKLR. Where the Court held that failure to apply the correct schedule in taxation was an error in principle.

14. Reliance was further placed in the case of Mwangi Keng’ara & Co Advocates v Invesco Assurance Company Limited [2018] eKLR to buttress the point of when the court can interfere with the taxing officer’s decision on the taxation. It was submitted that the disregard of the election by the taxing officer is an error in principle which led to the adoption of the wrong scale resulting in the applicant being deprived of necessary fees for actual service that had been rendered to the client/respondent.

15. It was submitted that an advocates entitlement to be remunerated for services rendered to a client is not restricted to the work charged for being one that is personally carried out by the advocate remuneration extends to work done by his other staff members. Reliance was made in the case of London Scottish Benefit Society v Chorley, Crawford and Chester [1884] 1 QB 872.

16. It was submitted that the learned taxing master erred in principle as she misinterpreted and misapplied the law as contained in Schedule V part 2 and prayed that the decision set aside and the chamber summons dated January 11, 2022 be allowed as prayed.

Determination 17. The court considered pleadings and written submissions of the reference.

18. The general principle upon which the court may interfere with the deputy registrar’s discretion are well settled in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board Nairobi Civil Appeal No 220 of 2004 [2005] eKLR, the Court of Appeal stated that, “the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing costs.”

19. Similarly in the case of First American Bank of Kenya v Shah &others [2002] 1 EA 65).

20. The applicant /advocate averred that prior to filing the bill of costs, the advocate notified the client of her election made pursuant to rule 22(1) of the subsidiary rules of the Advocates Remuneration Order to proceed under the said schedule and gave the 30 days requisite notice before commencement of taxation.

21. Rule 22 of the Advocates Remuneration Order provides as follows;“(1)In all cases in which any other Schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such Schedule, his remuneration shall be according to the scale applicable under the other Schedule.(2)Subject to paragraph 83, an advocate who makes an election under subparagraph (1) of this paragraph may not by reason of his election charge less than the scale fee under the appropriate Schedule”

22. The advocate filed a notice under section 48 and rule 22(1) dated November 11, 2013 and the same was received by the client on 27th January 2014 marked as MNM 2 and therefore the taxing officer was bound to apply the provisions of schedule 5 in the taxation of the bill of costs.

23. In the case of Anthony Thuo Kangai T/A A Thuo Kanai Advocates v John Ngigi Ng’ang’a[2014]eKLR. the court found that failure to apply the correct schedule in the taxation was an error in principle.

24. Schedule 5 of Advocates Remuneration Order prescribes taxation either by agreed hourly rate or alternative method of assessment that includes, instruction fees, drawing and perusal of documents, attendance, time engaged drawing correspondence or opinions and cost of journey to and from home to attend the matter.

25. Schedule 7 of Advocates Remuneration Order prescribes party to party costs based on the value of the subject-matter.

26. From the above consideration of schedule 5 & 7 and evidence that the appellant complied with rule 22 (1) of the Advocates Remuneration Order vide letter of January 27, 2014, the Taxing Officer disregarded the notice of election and adopted the wrong scale thus there was an error in principle which invites the court to interfere with the taxing officer’s decision on the taxation.

27. The taxing officer did not give any reasons in the ruling on taxation as to why he/she disregarded the notice of election and failed to apply schedule 5 part 2 of the Advocates Remuneration Order.

Disposition1. I therefore allow the reference and set aside the ruling on taxation by taxing officer.2. I remit the bill of costs back for fresh taxation before a different deputy registrar with direction that the instruction fee should be taxed in accordance with part II of schedule 5 of the Advocates Remuneration Order.

RULING DELIVERED, DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 6TH NOVEMBER, 2023(VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn the presence of:Ms Mwangi - For the applicantNo Appearance- For the respondentGeoffrey/Patrick - Court Assistant (S)