[2022] KEHC 9909 (KLR)

Otieno Ragot & Co. Advocates v Homa Bay County Assembly (Miscellaneous Civil Application 1 of 2019) [2022] KEHC 9909 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9909 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Miscellaneous Civil Application 1 of 2019

KW Kiarie, J

July 13, 2022

Between

Otieno Ragot & Co. Advocates

Applicant

and

Homa Bay County Assembly

Respondent

Ruling

1. There are two applications herein. The parties agreed to argue them together by way of written submissions. The first application is dated 18th November, 2019. This is an application by the applicant/advocate. The application was by way of Notice of Motion under section 51 (2) of the Advocates Act and Rule 7 of the Advocates (Remuneration) Order. The applicant/advocate is seeking the following orders:a)That the certificate of costs issued herein on in respect of the taxation order made on 2nd July 2019 for the sum of Kenya Shillings Nine Hundred and Ninety Six thousand, Nine Hundred and Fifty eight only (Kshs.996, 958. 80) be adopted as judgment and decree of this Honourable court, together with interest thereon at 14% per annum from 8th December, 2014 until payment in full.b)That the costs of this application be borne by the client/respondent.

2. The application was premised on the following grounds:a)The applicant/advocate was retained by the respondent to represent it in Homa Bay HC. Misc. application No.2 of 2014 J.R. (Republic vs Homa Bay County Assembly) and indeed the applicant represented it.b)There is no dispute of the fact that the applicant was retained by the respondent as aforementioned.c)The applicant’s costs in this matter have already been taxed by the court on 2nd July 2019 at kshs.996, 958. 00 and a certificate of costs issued thereon.d)The certificate of costs has neither been set aside nor altered by the court by way of review or any reference on taxation.e)The applicant is entitled to interest on the amount of its costs and disbursements in the Certificate of Costs from 8th December, 2014, being one month from the date of delivery of the applicant’s pro forma invoice seeking payment of the fees till payment in full in accordance with the provisions of Rule 7 of the Advocate (Remuneration) Order.f)The applicant is entitled to the orders sought.

3. The respondent did not respond to the application but instead filed another application by way of Chamber Summons dated 25th November, 2020. The application was brought under paragraphs 7, 11(2), 16 and 74 of the Advocates (Remuneration) Order. The following orders were being sought:a)The honourable court be pleased to grant leave to the respondent to file a reference out of the 14 days stipulated time period.b)That the decision of the Taxing Officer delivered of 2nd of July, 2020 be set aside.c)That this honourable court do refer the applicant’s bill of costs dated 6/11/2014 to another Taxing Officer for fresh taxation and with proper directions thereof.d)That in the alternative to prayer 3 above, this honourable court be pleased to re-tax the bill of costs dated 30/11/2016. e)That the costs of this reference be borne by the ex parte applicant.

4. The application was premised on the following grounds:a)The applicant was seeking the sum of skshs.4, 752,056. 51 as legal fees for professional services rendered in representing the respondent in Homa Bay HC Misc. application No.2 of 2014 J.R.b)The respondent opposed the bill and submitted that the applicant was not entitled to any costs on account of irregular procurement services rendered.c)The honourable Deputy Registrar delivered the ruling on 2nd July 2020 wherein she taxed the bill at kshs.3, 300,406/-.i)Taxing Master failed and/or did not adhere to in awarding inter alia the instructions fees. This, according to the respondent was because the Taxing Master failed to file a specific statement of the authorizing clause in law or a particularized justification of the mode of exercising any discretion provided for in allowing the amounts in respect of the disputed items.ii)The Taxing Officer did not appreciate that under Article 227 of the Constitution and the Public Procurement Act and Asset Disposal Act 2015, the procurement of goods and services must be fair, equitable, transparent, competitive and cost effective. In this case, it was pointed out that the principles of public procurement were negated by awarding tenders for procurement of legal services irregularly.d)The Taxing Officer failed to appreciate the principle of non-enforceability of illegal contracts.

5. It would be cheeky for the respondent to argue at this stage that there was no retainer. This was an issue that ought to have been brought to the attention of the Taxing Master at the earliest opportunity. This was not done. This court cannot allow such an argument at this stage.

6. Paragraph 11 (1) &(2) provides: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.The respondent has not demonstrated that the taxing officer had been given notice of the items disputed. Secondly. No explanation has been given as to why the timelines provided for were not adhered to. This being a discretionary relief, I have no basis of granting the same.

7. Without adhering to the procedure laid down to challenge the taxing master’s ruling, this court has no basis on which to interfere with the same. I accordingly allow the advocate’s application.

DELIVERED AND SIGNED AT HOMA BAY THIS 13TH DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE.