[2022] KEHC 13605 (KLR)

Raymond Olendo t/a Ogejo, Olendo Company Advocates & 3 others v Kenindia Assurance Company Limited & another (Miscellaneous Civil Application E078, E074 & E079 of 2021 (Consolidated)) [2022] KEHC 13605 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13605 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Civil Application E078, E074 & E079 of 2021 (Consolidated)

PJO Otieno, J

October 6, 2022

Between

Raymond Olendo t/a Ogejo, Olendo Company Advocates

1st Applicant

Luka Sikolia

2nd Applicant

and

Kenindia Assurance Company Limited

1st Respondent

West Kenya Sugar Co. Limited

2nd Respondent

As consolidated with

Miscellaneous Civil Application E074 of 2021

Between

Raymond Olendo t/a Ogejo, Olendo Company Advocates

1st Applicant

Jason Burudi

2nd Applicant

and

Kenindia Assurance Company Limited

1st Respondent

West Kenya Sugar Co. Limited

2nd Respondent

As consolidated with

Miscellaneous Civil Application E079 of 2021

Between

Raymond Olendo t/a Ogejo, Olendo Company Advocates

1st Applicant

Jothan S. Kenyatta

2nd Applicant

and

Kenindia Assurance Company Limited

1st Respondent

West Kenya Sugar Co. Limited

2nd Respondent

Ruling

1. By a ruling dated the October 18, 2021 the taxing master did tax the respondents’ bill of costs dated March 23, 2021 in the sum of Kshs 174,437.

2. In that decision, the master determined all items in the bill of costs, save for Item 1, 31, 32, 33 and 34, to have been drawn to scale. While items 31, 32, 33 and 34 were taxed off, the sum claimed in Item one, instructions fees, was taxed at Kshs 50,000 thus taxing off Kshs 15,000/=.

3. The decision aggrieved the client/applicant who then filed the chamber summons dated January 13, 2022 and sought in the main an order that the decision on retainer be set aside and the bill be struck out or in the alternative, the bill be remitted back for taxation afresh.

4. On its face the application is premised on the allegations that the decision was made without notice to the parties on November 3, 2021, and that an objection pursuant to paragraph 12 (1) was lodged seeking reasons on the November 9, 2021.

5. The core of the objection was that in the matter instructions were issued to Shilenje and Company Advocates and not Ogejo Olendo and Company Advocates hence there was a threshold issue to be determined by a judge and not the taxing officer in terms of paragraph 2, 10 and 13 of the Remuneration Order2009 hence in determining the question of jurisdiction the officer abrogated to herself a jurisdiction she did not have.

6. On the items allowed as prayed, for having been drawn to scale, the client faulted the court for failure to give reasons for her decision; for erroneously alleging that the same to having not been unopposed; for failing to take into account the relevant factors and for allowing items on court appearances on days when no attendance was made. For instructions fees, the client, position was that the sum recorded was manifestly as there had not been a confirmation of the existence of a judgment. However in the submissions the position taken is that the instructions fees awarded is not contested.

7. The client therefore prayed that the decision be upset and set aside because in any event the bill did not lie because the advocate had submitted a fee note which had been settled by the client.

8. Those grounds were reiterated in the affidavit of support which then exhibited the notice of objection, letter bespeaking certified copies of the ruling and the response by the taxing officer on its reasons for the decision.

9. The reference was resisted by advocate/respondent by the affidavit sworn by counsel Raymond Olendo. That affidavit assets that the bill was duly served upon the client and that when the matter came up for taxation, the client only objected to the bill by an affidavit on the sole ground that there had not been a retainer between the parties hence the advocate was not entitled to any costs. On that single issue of retainer, the advocate filed and affidavit in which it was asserted that even though instructions came from the insured in several related matters, the client did assume responsibility and ratified that appointment by not only accepting to be updated on the progress made but also by paying the decrees thereby resulting. Various correspondence between the parties were exhibited including letters by the client forwarding payment cheques for onward transmission to the claimants. It was added that there occurred a tripartite meeting between the client, advocate and the insured, when it was agreed that the advocate would defend all suits against the insured and the client would in turn pay not only legal fees but also decretal sums. Pursuant to the said tripartite agreement the client not only effected payment of decretal sums through the advocate but also drew and forwarded cheques in the joint names of advocate and the third party advocates for deposits to secure the decretal sums. Such correspondence and cheques were equally exhibited to the court.

Analysis 10. Proceedings touching on this file appear to have been taken in Misc App No E074/2021 where it was directed that the proceedings taken therein apply to this file including an order that parties file submissions. Indeed both sides filed submissions which the taxing officer recorded having carefully considered. In the cause of preparing this ruling, it emerged to the court that the reference in the thee files raise similar issues hence it is directed that the three consolidated.

11. Being a reference, I have had the benefit to re-appraise the material placed before the trial court on which the taxing officer based her decision and I consider these issues to isolate themselves for determination by the court:-- Whether the taxing officer had the requisite jurisdiction to determine the existence of retainer.- Whether the taxing officer was entitled to award the sum it awarded for Items Nos 2, 4 – 30?- What orders should be made as to costs?

12. Question of jurisdiction is a threshold issued that must be determined beforehand and before the court can move further. It follows therefore that in the event that it is determined that the taxing officer lacked jurisdiction to determine whether or not there was retainer then the other issues would turn moot and not available for determination in the reference as all else shall have collapse.

13. To answer the question whether or not there resides jurisdiction on a taxing officer to determine the question of retainer, one has to look at the power vested in the taxing officer by the Advocate (Remuneration) Order 2009. At paragraph 13A, the Order stipulates:-“For the purposes of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, administer oaths, to direct the productions of books, papers and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.”

14. The stipulation permits the taxing master to proceed with taxation as it would with a formal hearing of a claim pleaded in a plaint. The law limits not what the officer can do. I dare say that the power is very wide and unfettered in what the taxing officer can do in order that he reaches a fair and just decision on whether or not costs are due on the bill as presented and the quantum of such costs.

15. That the taxing officer has the mandate to determine the issue of retainer is a well trodden part now. Both High Court and the Court of Appeal have reiterated, on occasions I consider innumerable, that it is the mandate of the taxing officer to determine whether or not there was retainer before taxation ensues.

16. One such decision with a building effect on this court is that in Simon Kitchel Kachapin & 2 Others –Vs- Joel P Arumonyang’ & Another [2021] eKLR where, Musinga, JA (P) delivered himself, while following the decision of the Court of Appeal in Wilfred Konosi t/a Konosi & Co. Advocates –Vs- Flanco Ltd [2017] eKLR, and said:-“Once she established that there existed advocate/client relationship between the parties in each of the matter, now her core mandate is to tax the bill of costs...”Those words followed a reproduction of the decision of the court in Konosis’ case (Supra) where the court had pronounced himself as follows:-“The jurisdiction of a taxing officer is provided for in the Advocates (Remuneration) Order. That jurisdiction is to tax bills of costs in accordance with the applicable schedule of the remuneration order where there is no dispute as to retainer, or where costs have been duly awarded by an order of court. See paragraphs 2, 10 and 13 of the remuneration order, where the very fundamental issue whether or not an advocate was duly retained and thus entitled to any costs arises before a taxing officer, that issue ought first to be determined by the court.”

17. My reading of paragraph 13A and the binding decisions of the Court of Appeal compel me to find and hold that the taxing officer, often called master, had the requisite jurisdiction to determine the question of retainer as she did. I do therefore hold that there is no basis to fault her and disturb her finding on that score.

18. In coming to this conclusion, I have not equally read the decision of the High Court in Mugambi & Co. Advocates –Vs- John Okal Ogwayo [2013] eKLR, where it was held that the issue lies with the courts as defined by the act, but I find that decision incapable of overriding the more recent and binding decision by the Court of Appeal.

19. Even though it was never argued whether the court should interfere with the decision on retainer, I find it part of the court’s duty to do so as to be final and exhaustive on that question and for reasons that it needs not be regurgitated before the taxing master once more. On review of the material availed, the conduct of the parties revealed by the correspondence show that there was an advocate client relationship. If not one would find it difficult to explain why the client would have been sending third party cheques for onward transmission therefore find no reason to hold that there was no retainer.

20. Having resolved the threshold issue, the other question now become available for determination by the court. The outstanding question is whether the taxing officer was entitled to taxed Items 2 and 4 – 30 being drawing, service of documents and court attendances in the sum claimed in the bill of costs.

21. On those items the client contends that it was imperative to confirm the existence of the documents drawn, and service effected as well as attendance before court before making any award. It is contended that the trial court file was never availed to the taxing officer to enable such confirmation. In fact the client allege that there was nothing filed and served nor was any placed before the taxing master to enable verification.

22. On service, reliance was placed on the provisions of paragraph 61 of the Remuneration Orderthat expenses unnecessarily incurred should not be burdened upon the client with a stress that Items No 5, 6 & 7 were service allegedly on the same day and should have been treated as one and was thus unnecessary expense. By and large the taxing officer is faulted for having fell into the error of making awards which ought to have been guided on the records of the file but did not seek to have the file trial court filed before her.

23. The other fault for the officer was the award called futuristic and speculative expenses relating to prosecution of the bill of costs contrary to paragraph 69 (3) of the Remuneration Order. The court is finally faulted for having applied VAT across board including upon disbursements and for increasing the entire sum taxed by half instead of limiting increase to instructions fees only.

24. In resisting the faults, the advocate distinguishes between drawing of letters and documents like Affidavits and relies on paragraph 11 of schedule 7 to justify the one of Kshs. 1,000/=. On service, the advocate assets that the charge was based on distance between Kakamega, Eldoret and Nairobi and that the remuneration order permits charge based on kilometres covered. Service of documents was submitted as just and fair and in fact an undercharge when it is considered that the bill was served in Nairobi.

25. Need to leave the charge for prosecuting the bill blank was conceded but with a rejoinder that there is no consequence for failure to leave it black and that having so charged, same was to the advocates’ detriment because the taxing officer would have awarded more.

26. In summary the advocate tacitly agree that it is important to have the trial court file in order to confirm the documents filed, the receipts issued and attendances made and what happened at each of the attendances, without confirming whether or not the trial file was availed.

27. In fact at page 8 of the advocates’ submission the advocates concedes that court filing fees receipts are in the trial court file which ought to have been third party cheques for onward remittance by the advocate availed to the taxing officer. That underscores the need for the trial court file at taxation.

28. The court has perused the file, before it, together with the other two related files as well as the ruling by the court. The court finds no trial court file in taxation file and no allusion by the taxing master that she indeed perused the court file. The absence of the court file before me render even the invitation by client that I peruse the same and determine the due sum impossible a task. It is not demonstrated that the taxing officer saw and perused the file for verification.

29. It is important to stress to the taxing officers, that the duty demand verification of the court records or almost all items in the bill of costs. That verification inevitably demand the perusal of the trial court file. It is thus important that the moment a bill of costs is filed, the trial court file be availed to the taxing officer to enable accurate and due verification.

30. In this file, I find nothing to dispel the complaint by the client that there was no verification of the services alleged to have been given by the advocate. If the file was availed and perused nothing would have been easier as stating so in the ruling.

31. For reasons that there is no trial court’s file before me as it was not before the trial court, I find that it is a fit matter to be remitted to the taxing officer for determination based on the trial court file, of the due sums on Items 2 and 4 - 30.

32. To that extent only, the reference is allowed. Let the file be placed before the taxing officer at the earliest opportunity for her to give directions on the way forward.

33. On costs, it is ordered that the same shall be in the taxation.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 6TH DAY OF OCTOBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Ochieng for the Applicant/ClientNo appearance for the Advocate/RespondentCourt Assistant: Polycap Mukabwa