[2023] KEHC 25250 (KLR)

Mwaniki Kariuki & Co. Advocates v Clarence House Apartments Limited (Miscellaneous Civil Application 517 of 2018) [2023] KEHC 25250 (KLR) (Civ) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25250 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 517 of 2018

JN Mulwa, J

November 9, 2023

Between

Mwaniki Kariuki & Co. Advocates

Applicant

and

Clarence House Apartments Limited

Respondent

Ruling

1. By an application dated 7/07/2023 the applicant Clarence House Apartments Ltd moved the court under order 10 rule 1, of the Civil Procedure Rules and articles 159(2) of the Constitution for seeking orders against the respondents (hereinafter referred to as “the Advocates”) seeking orders: -a.To set aside the certificate of costs dated 9/06/2023;b.To issue a temporary injunction restraining the Respondent from proclaiming, attaching or selling the applicants goods;c.To issue an order declaring the Bill of costs dated 11/10/2018 is incurably defective, improper, un-procedural and an abuse of court process.

2. One Vincent Mbogoro Wainaina who describes himself as a Director of the Applicant swore the supporting affidavit on 7/07/2023 in support of the grounds of the application, that no instructions were issued to the Respondent to lodge an appeal against the decision in Miliman CMCC No. 4778/2016 –Neru (K) Ltd vs. Clarence House Apartment Limited or to file an urgent application seeking stay of execution of the decree in the same case.

3. Additionally, it is stated that the Advocates never filed the appeal nor the application for stay nor served the Bill of Costs dated 11. 10. 2018, the certificate of costs dated 9/06/2023 or any other notices in respect to the taxation herein.The applicant thus depones that as a result, the Bill of costs and all consequential events thereafter, including the execution proceedings against it should be set aside, and an injunction to issue against the Advocates from executing for the taxed costs at Kshs. 156,610/= plus further costs as assessed by the court.

4. In opposing the application, the Advocates filed a Replying Affidavit sworn on 24/07/2023 by Samuel Mwaniki Kariuki partner in the Advocates Law Firm, in which the proceedings in the trial case has been tabulated at paragraph 3 (a) –(h) showing the manner the Advocate client bill of costs was served, notification of the proceedings by the advocates to the applicant upto the certificate of taxation issued on 119/01/2022 which the applicant failed to settle prompting the advocates to file the application dated 3/06/2022 which they duly served upon the applicant who did not oppose the same and was allowed with costs warded at Kshs. 2,000/=

5. The advocates deny all the allegations by the applicant and depones the applicant has committed perjury, tabulating instances of perjury at paragraph 5 (a) – (f) of the replying affidavit.

6. Additionally, the Advocates aver that the application is Resjudicata and ought to be struck out with costs upon grounds also stated therein; and more particularly confirms that at the taxation of the Advocate client bill of costs dated 11/10/2018, the applicant was duly represented by his advocates Njoroge Joseph Mwangi (Njoroge J. M. & Co. Advocates) who only opposed the item on instructions fees, upon which the taxing officer pronounced herself on the item.

7. The advocates have annexed numerous communication with the applicant and his advocates by emails hence submit that at all material times, the applicant was made aware of the proceedings including notification of intention to execute the judgment on costs by email dated 29/11/2022. For the above reasons among others stated at the replying affidavit, the Advocates urge the court to dismiss the application with costs.

8. I have carefully considered the supporting and opposing affidavits, annexures thereto, and the Advocates submissions. The applicant has not filed submissions only the advocates filed.

Analysis and Determination 9. There is no dispute that the applicant appointed the Respondent to take over the conduct of Milimani CMCC No, 4778 of 2014 which is the genesis of the application from its former advocates by a Notice of change of Advocates dated 20/03/2015 who conducted the case on its behalf until judgment was entered against it on 1/12/2016.

10. There is also no doubt or dispute that the applicant instructed the Advocates to seek stay of execution orders before the trial court, which interim orders were granted pending hearing of the application; but the applicant opted to appeal while the interpartes hearing of the application was pending before the trial court.

11. The Appeal, HCCA No. 87 of 2017 was thus filed and at the same time an application seeking stay of execution pending the appeal was also filed by the Advocates. While the application was pending, the applicant instructed another law firm R. M. Njiraini & Co. Advocates to take over the conduct of the both the Appeal and the application before the trial court; and a notice of change filed on 16/03/2017 and 17/03/2017 respectfully.

12. At this point, the Advocates requested the applicant to pay their costs of the Appeal, which he declined prompting the Advocate to file advocates Client Bill of Costs dated 11/10/2018.

13. On the taxation of the costs, the applicant yet instructed another law firm Njoroge J. M. Advocates to represent it at the taxation who argued before the taxing officer that the applicant had not instructed the advocates to file the appeal; eventually on the bill was taxed and allowed at Kshs. 154,610/= which was not paid despite the applicant having been fully represented by its appointed advocate, leading to execution proceedings against it by proclamation dated by base auctioneers.

14. It is also not disputed that the applicant through its advocates were duly served with the certificate of taxation and by application dated 3/06/2022, which was not opposed, the taxed costs were converted to a judgment of the court and decree was issued. The applicant failed to settle the decree.

15. Y the instant application dated 7/07/2023, the applicant seeks an order to set aside the certificate of costs dated 9/06/2023, an order of injunction to restrain the Advocates from attaching or selling his movable goods. This application is filed by yet another law firm Kaloki Ilia and Mbugua Advocates who going by the court Record came on record for the Applicant after the decree was issued and execution proceedings undertaken in place of J. M. & Co. who acted for him during the taxation by a notice of appointment dated 19/06/2023.

16. It is also important to note that the Applicant paid a sum of Kshs. 50,000/= out of the decretal sum when attachment was made by Base Auctioneers.

17. By a further notice of motion application dated 7/07/2023 under a certificate of urgency, the court granted interim stay orders of execution and directed for interpartes hearing on 27/07/2023. This is the application subject of this ruling.

18. Upon consideration of the long background stated above, the only issue for consideration is whether the Applicant company instructed the Advocates to act for it in the trial court by filing an application for stay of execution and filing the Appeal.

19. I have considered not only the parties affidavits for and in support but also the court file proceedings to understand the dispute.In the first instance, though not legally wrong, why the applicant kept changing advocates in every stage of actions before the trial court, in the Appeal and before the taxing master.

20. Without a doubt, without any explanation, it raises eyebrows.The advocates hence(respondents) fell victim of applicants maneuvers. At every step, the court finds that the applicant was duly represented by one or another of the many advocates it instructed.

21. On the instructions to the Advocates by the applicant in the trial court, to file the application and also to file the appeal HCCA No. 087 of 2017 from which the taxation of the Bill of costs arose. I am persuaded that instructions were duly given to the Advocates.

22. The issue of none retainer was raised before the taxing master by yet another advocate but the same was dismissed. The taxation proceeded, certificate of taxation issued, and a decree eventually issued against the applicant. The court has not been told that there is a reference filed against the said taxation.

23. The applicant was represented by Njoroge J. M. Advocates, so he ought to have known the consequences of failure to pay the taxed costs. Indeed, I the present application another law firm came on record on 19/06/2023, Kaloki Ilia & Mbugua Advocates to challenge the taxed bill of costs and the certificate of taxation.This matter having been raised and adjudicated upon by the taxing officer, cannot now be subject to further litigation.

24. Section 7 of the Civil Procedure Rules is clear that litigation must come to an end. The issues before the court were tried and determined before a competent court. The parties before the said court are the same in this application, and a final determination rendered, there being no appeal or reference or any other matter pending determination.

25. The purpose for the provision – section 7 aforestated is to bring to conclusion a matter that has been fully determined and finalized by a competent court, and therefore bring litigation over same matter to an end.

26. This court finds the application dated 7/07/2023 to be baseless, frivolous and an abuse of court process.The advocates are fairly and legally entitled to be paid for the services rendered to the applicant. There being no bar for recovery of their fees, the interim injunctive orders issued in favour of the applicant on the 12/07/2023 are hereby vacated.

27. The application dated 7/07/2023 is dismissed with costs to the Advocates/Respondents in the application.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023. JANET MULWAJUDGE