[2023] KEHC 23969 (KLR)

Odhiambo Owiti & Company Advocates v Equator Bottlers Limited (Miscellaneous Civil Application 126 of 2020) [2023] KEHC 23969 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23969 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Application 126 of 2020

RE Aburili, J

October 16, 2023

IN THE MATTER OF ADVOCATE/CLIENT BILL OF COSTS AND IN THE MATTER OF

Between

Odhiambo Owiti & Company Advocates

Applicant

and

Equator Bottlers Limited

Respondent

(Arising from professional services rendered by the Applicant Advocate for the Respondent client in Kisumu HCC Misc. Civil Appl. No. 159 of 2017)

Ruling

1. This is an advocate/client matter. By a Notice of Motion dated 20th June 2022 and filed in court on 21st June 2022, the advocate prays that:i.The certificate of costs dated 16th September 2020 and issued on 17th May 2022 be adopted as the Judgment and decree of this court and judgment be accordingly entered for the advocate against the client in the sum of Kshs.35,598. 66 Kenya Shillings Thirty-Five Thousand, Five Hundred and Ninety Eight and Sixty Six Cents only with interest at 14% per annum from 15th December 2017 until payment in full.ii.That the costs of these proceedings be borne by the Client/Respondent.

2. The application is predicated on the grounds on the face thereof namely: -a.That the advocate was retained by the Respondent to represent it in Kisumu HC Misc. Civil Appl. No. 159 of 2017 and that the applicant did infact represent the Respondent in that suit;b.That there is no dispute of the fact that the applicant was retained by the Respondent as aforementioned.c.That the Applicant’s costs in this matter have already been taxed by the court on 16th September 2020 for the sum of Kshs.35,598. 66 and a certificate of costs issued.d.That the certificate of costs has neither been set aside nor altered by the court by way of review or any reference on taxation and so, it remains the final order of the court as regards the issue of the quantum of costs payable.e.That the applicant is entitled to interest on the amount of its costs and disbursement in the Certificate of Costs from 15th December 2017 being 30 days from date of presentation of its final fee note to the Respondent till payment in full in accordance with the provisions of Rule 7 of the Advocates Remuneration Order.f.That it is in the interest of justice that the application be allowed.

3. The application is further supported by the affidavit sworn by Linda Agatha Advocate on 20th June 2022 wherein it is deposed that the client herein instructed the advocate in Kisumu HC Misc. Appl. No. 159 of 2017 Bruce Odeny & Company Advocates vs Equator Bottlers Company Limited and the applicant advocate represented the client after filing Notice of appointment of advocates dated 31st July 2017.

4. That the advocate then demanded for payment of legal fees vide proforma invoice dated 15th November 2017 but that the client never settled the said legal fees thereby necessitating the filing of this matter of Advocate/Client bill of costs which were taxed at Kshs.35,598. 66 as per the certificate of costs issued on 16th September 2020 and taxed on 16th September 2020, which certificate of costs has neither been set aside nor altered by the court and that no reference is pending.

5. Further that pursuant to Rule 7 of the Advocates Remuneration Orders the advocate is entitled to 14% p.a interest from 15th December 2017, being 30 days from the date of presentation of the fee note to the client by the advocate.

6. That the certificate of costs can only be enforced upon its adoption as judgment of this court and decree on the same issued.

7. Opposing the application, the Client/Respondent filed an affidavit in Reply on 28th September 2022 sworn by Florence Mukiria, its Human Resource Business partner. In the said affidavit, she denies that the Respondent ever retained the advocate/applicant to represent its interests in the alleged matter Kisumu Misc. Appl. No. 159 of 2017 as alleged in the application.

8. That no instructions vide a letter of instructions detailing the particulars of the suit and the intended action was given as is their norm in all instances when the client retains the services of an advocate.

9. Further that the Bill of Costs dated 13th July 2020 has never been served upon the Respondent and that it neither bears the stamp of the Respondent company nor the signature of the receiver of the said documents.

10. That as a result of non-service of the bill of costs upon the Respondent, it was unable to challenge and dispute the items listed therein. That had the Respondent received the said documents, it would have immediately instructed its advocates Kiragu Wathuta & Company Advocates to immediately respond to and dispute the said Bill of Costs.

11. That the Client/Respondent was not aware of the said certificate of costs for reasons of the non-service of the Bill of Costs hence it never had the opportunity to defend its interest by filing a reference and generally setting aside of the said certificate of taxation dated 16th September 2020 which should not be adopted as judgment of this court in view of the averments above.

12. That the Respondent cannot be condemned to unjustified ambiguous amounts on interest when they were not served with the alleged illegal bill of costs which would have been vehemently and strongly opposed hence the application dated 20th June 2022 should be dismissed with costs to the Client/Respondent.

13. In a further affidavit sworn by Linda Agatha Advocate on 24th June 2023 it was deposed that the only instances where the court may not enter judgment on a certificate of costs is where the certificate of costs has been set aside, varied and or altered or where the retainer is in disputed.

14. That albeit the Respondent now denies retainer, a letter was written to it by the advocate updating it of the matter in Misc. Appl. No. 157 of 2017, acknowledging the letter dated 15th November 2017.

15. Counsel also annexed copies of correspondence between the advocate’s law firm and the Respondent client between 2018 and 2020.

16. That the Bill of Costs dated 13th July 2020 and certificate of taxation were served on the Respondent at Usoma on 15th July 2020 and that the Respondent acknowledged.

17. The application was argued orally on 26th June 2023 with Ms. Anuro submitting on behalf of the advocate/applicant that there was reference which was dismissed as per the court record on 30th March 2023. She wholly relied on the affidavit in support of the application and the further affidavit filed in court urging this court to allow the application as prayed.

18. On behalf of the Respondent, Ms Nyambura submitted that the only issue for determination in the matter herein is that the Respondent is not aware of any legal representation by the applicant advocate.

19. That there is no letter of instructions produced and she relied on Section 51(2) of the Advocates Act arguing that there was no retainer hence the court should not allow the application. She cited Republic vs City Council of Nairobi Exparte & Hydeland Limited (2021) eKLR.

20. In a brief rejoinder, Ms. Anuro submitted that there was a Reference in which the Respondent filed submission and participated but never raised retainer issue. She relied on the documents annexed to the further affidavit adding that the bills of costs were served and that notices of taxation were issued with affidavits of service being filed in court hence there is no reason why the certificate of costs should not be converted into a judgment.

Determination 21. I have considered the application dated 20th June 2022, the grounds, supporting and further affidavit. I have also considered the Respondent’s Replying affidavit and the oral submissions by both counsel for the respective parties. In my view, the issue for determination is whether the application has merit. The application is brought under Section 51(2) of the Advocates Act Cap 16 Laws of Kenya which provides that:-“51(2) 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 covered thereby, and the court may make such order in relation thereto as it thinks fit, including in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

22. In Musyoka Wambua Advcoates vs Rustam Hira Advocates (2006) eKLR, the court stated that:“Section 51 of the Act makes general provision as toe taxation, as the marginal note indicates one of the provisions is that the court has discretion to enter judgment on a certificate of taxation which has not been set aside or altered, where there is no dispute as to retainer. Then, in my view is a mode of recovery of taxed costs provided by law, in addition to filing of suit...”

23. The procedure set out in Section 51(2) of the Advocates Act enables or facilitates expedition in the disposal of cases relating to the recovery of advocate/client cost and the only condition set thereunder are that:-i.The costs have been taxed, and a certificate of taxation of those cost issued and signed by the taxing officer master.ii.The certificate of costs has not been stayed or set aside nor a reference pending on the same.iii.There is no dispute on retainer.

24. Upon the above conditions being met, then the advocate applies to the Judge for entry of Judgment by adopting the certificate of costs or if taxation as the judgement of the court and a decree is issued thereon.

25. In the instant case, the certificate of taxation of costs dated 16th September 2020 and issued on 17th May 2022, which is sought to be adopted as judgment of this court and decree to issue, has not been set aside and neither is there stay of the same. Neither has the Respondent claimed that there is a pending Reference challenging the same under paragraph 11 of the Advocates Remuneration Order. Instead, the Respondent through its Human Resource Manager, has sworn an affidavit deposing that they were never served with the notice of taxation or the certificate of costs as taxed to enable them challenge the same.

26. Further, that the interest of 14% p.a sought is illegal and unjustified. They claim that there was no retainer to warrant the taxation. In response, the advocates for the applicant filed a further affidavit sworn on 24th June 2023 by Linda Agatha annexing documents evidencing the correspondence between the advocates and the client by email in advance and by letter dated 15th November 2017 at 12. 56pm; 18th December 2017 forwarding a cheque to the advocate to submit to Bruce Odeny & Company Advocates for Kshs.597,450; demands for settlement of legal fees via emails covering 13 files; taxation notice dated 13th July 2020; affidavit of service sworn on 16th July 2020 by Cosmas Oyoo Laja a process server, showing that on 15th July 2020, the Respondent herein were served and they received the Notice of taxation for 25th August 2020 on 15th July 2020 by stamping on the copy of Notice. Their address and telephone are stated in the receiving stamp.

27. I am therefore satisfied that there was service of the demand for legal fees and a Notice of taxation of costs was properly served and received physically by the Respondent.

28. The only issue is whether there was retainer which is disputed despite the correspondence between the advocates and the Respondent on legal representation that does not touch on disputed retained.

29. I have perused this file carefully and also perused all the other 4 files related to this matter between the same parties.

30. I am totally surprised that despite the glaring overt proceedings and a well-reasoned Ruling delivered on 30th March 2022 in this matter in a reference dated 6th October 2020 challenging the taxing officer’s decision on items 1 and 2 of the Bill of Costs and asking the Judge to reassess the said costs taxed on 16th September 2020; dismissing the Reference by the advocate herein with costs to the Client.

31. The question is, which costs were assessed without notice to the Respondent when the Respondent when the Respondent was clearly serve with the Notice of taxation and after the said taxation was done vide the proceedings of 25th August 2020 and a Ruling delivered on 16th September 2020, the advocate filed a reference which was argued interpartes and dismissed with costs, why did the Respondent not raise any issue of retainer at that time and waits until the advocate is seeking for judgment on the certificate of costs then it raised the issue of retainer?

32. In my view, the issue of retainer is an afterthought in view of the glaring evidence that the advocate represented the Respondent in several matters against Bruce Odeny & Company Advocates which were advocate/client bills of costs and the Respondent even forwarded cheques to the advocate herein to pay to Bruce Odeny & Company Advocates, in settlement of their taxed bill of costs. If there was no retainer, whey was the Respondent sending cheque to a stranger to remit to the Respondents opponent and former advocate for them?

33. I find the Respondents to be mischievous and hell bent to escape their legal obligations to settle the legal fees due and owing to their advocates by raising the issue of retainer which they would have done so in a reference or cross reference to that which the advocate filed.

34. In Lubulellah & Associates Advocates vs N. K. Brothers Ltd (2014) eKLR the court stated 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 25th November 2012. ”

35. I hasten to add that the procedure laid out in paragraph 11 of the Advocates Remuneration Order enables any of the parties to the bill of costs to challenge the taxation of the bill of costs or certificate of taxation.

36. In addition, a party would be at liberty to challenge a bill of costs before taxation on account that there was no retainer and the dispute on retainer would then be referred to the judge to resolve that issue of retainer first before taxation can take place. Even after such taxation is done, the party challenging retainer can still do so but the question here is whether the mere challenge that there was no retainer is sufficient to make this court note that there was no retainer, in the glaring view of the evidence adduced by the advocate showing correspondence between the parties herein during the pendence of the dispute between the Respondent and Bruce Odeny & Company Advocates, which evidence has not been controverted by the Respondent that the advocate had authority to represent the Respondent in the various matters..

37. The answer is simple, that the claim that there was no retainer is an afterthought and an attempt to frustrate the advocate/applicant from recovering the costs due to them as taxed by the taxing master and to delay such recovery.

38. On whether the 14% p.a interest claimed is available to the advocate on the taxed costs, Rule 7 of the Advocates Remuneration Order provides that:-“An advocate may charge interest at 14% per annum on his disbursements and cots, whether by scale or otherwise, from the expiry of one month from the delivery of his bill to the client, providing such claim for interest is raise before the amount has been paid or tendered in full.”

39. The advocate has claimed for 14% p.a interest on costs and disbursements pursuant to Rule 7 of the Advocates Remuneration Order from 15th December 2017.

40. The evidence annexed to the further affidavit of Linda Agatha Advocate is that the advocate wrote to the Respondent on 15th November 2017 seeking for settlement of their costs. The Respondent never raised any retainer issues and neither did it pay the fees for legal representation in Misc. Application Nos. 149, 154, 156, 157, 158 and 159 of 2017. Advocate forwarded his final fees notes on all the matters to enable him close his files.

41. For the above reason, I find that the advocate is entitled to charge 14% p.a from 15th December 2017 on the costs and disbursements of the taxed bill of costs.

42. In the end, I find the application by the advocate dated 20th June 2022 to be merited. I allow it and make the following orders:1. Judgment be and is hereby entered for the advocate against the Respondent/Client in the sum of Kshs.35,598. 66 as per the certificate of costs dated 16th September 2020 issued on 17th May 2022 which is hereby adopted as judgement of this court.

2. The costs and disbursement by the advocate as taxed shall earn interest at 14% per annum from 15th January, 2018, which is one month after the demand was made to the client, until payment in full.

3. Decree to issue forthwith.

4. As the Respondent has taken the Applicant round the circles in this very simple matter which opposition I find to be vexatious and frivolous, I order that the Respondent shall bear costs of this application assessed at Kshs.15,000 to be included in the decree for settlement and recovery in this file only, not in the other files.

5. This Ruling shall apply Mutatis Mutandis to HC Misc. Application Nos. 127, 129, 132, 130,131,133 and 128 of 2020 with necessary modifications as to the amounts and the parent files for which costs were incurred.

43. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE