[2022] KEHC 11309 (KLR)

Mwaniki v Kimura; IN AN APPLICATION BY M/S. C.K. UNGU & COMPANY ASSOCIATE (Advocate) (Miscellaneous Civil Case E047 of 2021) [2022] KEHC 11309 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11309 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Civil Case E047 of 2021

TW Cherere, J

May 5, 2022

IN THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF TAXATION OF COSTS BETWEEN PARTY AND PARTY

Between

Ann Nkirote Mwaniki

Applicant

and

Joseph Maina Kimura

Respondent

and

IN AN APPLICATION BY M/S. C.K. UNGU & COMPANY ASSOCIATE

Advocate

Ruling

1. The firm of M/S C.K.Ungu & Company Associates represented the Applicant in MAUA CMCC No. 199 of 2017 in which judgment was entered in favour of the Applicant as against the Respondent.

2. Respondent filed High Court Civil Appeal No 61 of 2019 in which appeal the Applicant was represented by the firm of MS Nkunja & Co Advocates.

3. At the conclusion of the appeal, MS. Nkunja & Co. Advocates for the Applicant, drew a Party and Party Bill of Costs. The bill appears to have been settled by consent before taxation and Respondent through his advocates MS. Mithega & Kariuki Advocates paid to MS. Nkunja & Co. Advocates for the Applicant Kshs. 119,975/- for the said costs.

4. Subsequently, M/S C.K.Ungu & Company Associates filed a Party and Party Bill of Costs in Maua CMCC No. 199 OF 2017 dated June 4, 2021on behalf of the Applicant. When counsel appeared before the Taxing Master on June 24, 2021, counsel for the respondent opposed the bill on the grounds that the costs had already been settled.

5. By a ruling dated August 6, 2021, the Taxing Master agreed with submission by counsel for the respondent that the costs had already been settled and thus struck out the Bill of Costs dated June 4, 2021.

Summons 6. By a chamber summons dated and filed on August 6, 2021, M/S C.K.Ungu & Company Associates seek the following orders:a.That the decision of the Taxing Master dated July 15, 2021striking out the plaintiff’s Bill of Costs be set asideb.Appropriate directions be made regarding assessment of Plaintiff’s Bill of Costs in Maua CMCC No. 199 of 2017c.Costs be provided for

7. The application is opposed on the basis of a replying affidavit sworn on by the applicant on November 12, 2021. She concedes that M/S C.K.Ungu & Company Associates represented her in Maua CMCC No. 199 OF 2017 whereas MS. Nkunja & Co. Advocates represented her in High Court Civil Appeal No. 61 of 2019. Applicant avers that her costs have been settled and urges the court to find that that this application will serve no meaningful purpose. Manasses Kariuki Karoki, advocate for the Respondent by his affidavit sworn on November 16, 2021 reiterates that the Applicant has already been paid Kshs. 119,975/- being Party and Party Costs as evidenced by a cheque for the same sent to MS. Nkunja & Co. Advocates by a letter dated July 3, 2020.

8. I have carefully considered the reference in the light of the affidavits and submissions on record. I have also considered the Taxing Master’s ruling dated August 6, 2021giving reasons for the striking out of the Applicant’s Party and Party Bill of Costs dated 04th June, 2021.

Analysis and Determination 9. The principles upon which this Court may interfere with the Taxing Master’s decision are well settled. (See D. Njogu & Company Advocates v Panafcon Engineering limited (2006) eKLR.).

10. Section 62A of the Advocates (Remuneration) Order, 1962 which deals with Costs where there has been a change of advocates provides as follows:(1)Where there has been a change of advocates or more than one change of advocates, the advocate finally on the record shall draw a single bill for the whole of the matter in respect of which costs have been awarded.(2)On taxing the bill the taxing officer shall take into account the following principles, that the bill shall not be larger than if a single advocate had been employed and that the party taxing the bill shall not obtain indemnity for costs which he has not paid.(3)The bill shall be accompanied by a certificate setting out the dates during which all advocates acted, together with all agreements for remuneration made with them, all sums paid to them for costs and whether those sums were paid in full settlement.

11. Whereas there is evidence that MS. Nkunja & Co. Advocates was not on record in Maua CMCC No. 199 of 2017 as at the time the Party and Party costs were paid, there is no doubt that the costs have been settled as confirmed by the Applicant and by Respondent’s counsel.

12. I have considered the holding by Odunga J in Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 3others [2012] eKLR that in strict legal sense, party and party costs belong to the party as opposed to the advocate client costs and now that the Party and Party Costs have been settled find that the striking out of the Party and Party Bill of Costs dated June 4, 2021 filed in Maua CMCC NO. 199 OF 2017 was well grounded.

13. To allow the applicant to tax a bill that has already been settled would be an exercise in futility and would not only expose the parties to unnecessary costs but also goes against the court’s duty to provide just, expeditious, proportionate and affordable disposal of cases,

14. Accordingly, the chamber summons dated and filed on August 6, 2021is considered and found to have no merit and it is dismissed with costs to the Client and Respondent.

DATED AT MERU THIS 05THDAY OF MAY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Advocate/Applicant - N/AB for C.K.Ungu & Company AssociatesFor Client/Applicant -Mr. Nkunja for Nkunja & Co. AdvocatesFor Respondent - Mr. Kariuki for Mithega & Kariuki Advocates