[2023] KEHC 26562 (KLR)

Mwaniki Gitau & Co Advocates v Njoroge (Miscellaneous Application 333 of 2018) [2023] KEHC 26562 (KLR) (Commercial and Tax) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26562 (KLR)

Republic of Kenya

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

Commercial and Tax

Miscellaneous Application 333 of 2018

FG Mugambi, J

December 8, 2023

Between

Mwaniki Gitau & Co Advocates

Applicant

and

Esther Wambui Njoroge

Respondent

Ruling

Background 1. Before the court is a Notice of Motion application dated 30/1/2023 brought under Rule 11(2) of the Advocates Remuneration Order(ARO). The respondent seeks to have the ruling of the taxing master (Hon. C. Wanyama) delivered on 20th August 2022 in respect of the advocate/client bill of costs of 25th July 2018 reviewed and/or set aside.

2. The application is premised on the grounds that the taxing master failed to hold that the advocate’s bill of costs was fatally defective as it was in respect of services rendered to the Estate of Diawara Adama in HCCC No.178 of 2013 and not services rendered to the respondent/client. Further, that the appointed joint administrators of the Estate of Diawara Adama and the joint plaintiffs in HCCC No.178 of 2013 are Esther Wambui Njoroge and Hawa Diawara but the bill of costs did not join Hawa Diawara as a party in the taxation proceedings.

3. The respondent faults the taxing master for failing to find that no documents were produced by the advocate/applicant to support the allegation that the applicant had rendered any legal services to the respondent in HCCC No.178 of 2013 as alleged and that the taxing master misapplied the law and fact in assessing and awarding the sum of Ksh.300,000/- as instruction fees despite having found that the subject matter in the plaint was not ascertainable. The said amount was again erroneously increased by 50% as part of the instruction fee.

4. The Respondent averred that the taxing master erred in principle in awarding the total summarised amount of Ksh.425,436/- without providing a justifiable explanation to show how the said amount had been arrived at and that the Taxing Master considered irrelevant and extraneous factors in assessing and taxing the Applicant’s bill of costs and ended up arriving at the wrong award of Ksh,640,949/- in favour of the advocate.

5. In opposition to the application, the advocate filed a Notice of Preliminary Objection dated 11th May 2023 seeking to have the application struck out on the grounds that it contravenes Rule 11(2) of the ARO. The advocates avers that the application has been filed more than 14 days after delivery of the ruling of 30th August 2022 which also contained the reasons for the ruling.

6. The advocate notes while the notice of objection to the taxation ruling purports to seek for the reasons of the said ruling, the client has annexed the exact same ruling which has no additional reasons. This means that there is no justification for the client having awaited a copy of the ruling. The applicant further pleaded that this court has no jurisdiction to hear and determine the matter.

Analysis 7. Rule 11 of the ARO under which the application has been brought, provides as follows:“(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.(3)...(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”

8. My understanding of the said provision is indeed in concurrence with the holding in Ahmed Nassir v National Bank of Kenya Ltd, [2006] E.A. The Court held that:“Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the Hon. Taxing Officer should do so within 14 days, after the said decision and thereafter file his reference within 14 days from the date of receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of sub-rule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.”

9. In this case, the client avers that she wrote to the Deputy Registrar on 9th September 2022 indicating her dissatisfaction with the ruling of the taxing officer and asked for reasons for the ruling together with a typed and signed copy of the ruling in order to file a reference.

10. The purpose of such notice is to bring to the attention of the taxing master the points of taxation which are objected to and to receive reasons for the said objection. I have analysed the impugned ruling dated 30th September 2022 and I note that the taxing master gave reasons for her findings. The client was aware of the contents of the said ruling. I therefore concur with the submission that it was unnecessary for the client to again seek the same.

11. It would appear to me that the client required more time to file the reference. If this was the case, the client was at liberty to apply for an extension of time to do so, which she has not done, instead of using the guise of rule 11(2).

Determination 12. For the reasons that I have stated, I find merit in the advocates preliminary objection. I further hold that the instant application contravenes Rule 11(2) of the ARO, 2014 having been filed more than 14 days after delivery of the ruling dated 30th August 2022.

13. It then consequently follows that the application dated 30th January 2023 is struck out with costs to the advocate.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 8TH DAY OF DECEMBER 2023. F. MUGAMBIJUDGE