[2022] KEHC 15815 (KLR)

Samnakay v Aga Khan Hospital (Miscellaneous Cause E538 of 2018) [2022] KEHC 15815 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15815 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Cause E538 of 2018

JN Mulwa, J

December 1, 2022

N THE MATTER OF THE ADVOCATES ACT -AND- IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT

Between

Mohamed & Samnakay

Applicant

and

Aga Khan Hospital

Respondent

Ruling

1. This Ruling is in respect to the Applicant’s Notice of Motion application dated April 12, 2022 and the Respondent’s Notice of Motion application dated April 26, 2022 and the Respondent’s Notice of Preliminary Objection dated July 8, 2022.

2. The Applicant’s Notice of Motion dated April 12, 2022 was brought under the provisions of Section 51 (2) of the Advocates Act, Rules 7 of the Advocates Remuneration Orderand Order 51 Rule 1 of the Civil Procedure Rules. It seeks the following orders:1. That judgment be entered for the sum of Kshs 38,562. 50 for costs as certified by the Deputy Registrar of this Court on the April 5, 2022. 2.That judgment on interest be entered on the said sum of Kshs 38,562. 50 at the rate of 14% per annum from the May 26, 2021 being one month after service of the Bill of Costs on the Respondent until payment in full.3. That the respondent do pay costs of this Application assessed at Kshs 30,000/-.

3. The application is predicated on the grounds thereon and supported by an Affidavit sworn by Zul Mohamed, an Advocate and a partner in the Firm. He avers that the Applicant's Bill of Costs was duly taxed and a Certificate of Taxation duly issued on April 5, 2022. He also avers that there are no valid outstanding issues on costs to be determined by this Court.

4. In response, the Respondent filed a Replying Affidavit sworn on June 8, 2022 by its Advocate on record, Benard Busiku Chenge. He stated that the subject Bill of Costs was filed on April 23, 2021 pursuant to court orders issued on January 21, 2021. He averred that prior to the taxation of the Bill, the Respondent paid the Applicant a sum of Kshs 67,972. 50 on or about March 11, 2021. However, the Bill was later taxed in the sum of Kshs 38,562. 50 as per the Certificate of Costs. The Applicant therefore owes the Respondent the sum of Kshs 29,410/- and needs to refund the same. Further, he contended that the Certificate of Taxation was wrongly extracted since the subject Bill of Costs was a Party and Party Bill and not an Advocate and Client one.

5. In the Notice of Preliminary Objection dated July 8, 2022, the Respondent seeks that the Applicant’s application dated April 12, 2022 be struck out and/or dismissed in limine with costs on the following grounds: -1. This Honourable Court has no jurisdiction to hear and determine the Application for reasons that the Applicant's Further Bill of Costs was taxed as a Party and Party Bill of Costs thus the Applicant cannot purport to file the instant application under Section 51(2) of the Advocates Act and Rule 7 of the Advocates Remuneration Order as the provisions only relate to Advocate and Client Bill of Costs.

2. The application is a non-starter as it ought to be filed as a miscellaneous cause in a separate suit and not in the instant suit.

6. The Applicant responded to the preliminary objection vide a Replying Affidavit sworn on August 17, 2022 by Zul Mohamed Advocate. It was averred that the Preliminary Objection is a mere red herring, aimed at diverting the court's attention from the core issue in the application dated 12/4/2022. It was contended that the mere fact that the Taxing Officer taxed the Bill of Costs on Party and Party scale does not oust the Jurisdiction of this Court. The Applicant maintained that the Certificate of Taxation was properly issued and has not been set aside hence there is no reason why this court should not enter Judgment as sought by the Applicant. He noted that in any event, the provisions of Articles 159(2) (b) and (d) of the Constitution and Section 1A and 1B of the Civil Procedure Act entitle this Court to reject frivolous arguments based on sheer technicality. Thus, even if the applicant’s application of April 12, 2022 was filed in the wrong cause, that would not oust the jurisdiction of this Court.

7. To urge their respective rival positions, both parties filed written submissions. The submissions were largely a reiteration of the averments in their respective Affidavits. In addition, the Applicant submitted that pursuant to Rule 7 of the Advocates Remuneration Order, it is entitled to interest on the taxed costs at 14% per annum from May 26, 2021, being one month from the date on which service of the subject Bill of Costs was effected on the Respondent. On the other hand, the Respondent asserted that the expression “one month from the delivery of his bill to the client” in Rule 7 of the Advocates Remuneration Order indicates that interest is only chargeable in the case of an Advocate – Client Bill of Costs. The Respondent thus urged that the application be dismissed with costs assessed in the sum of Kshs 30,000/- so that they do not have to file a Party and Party Bill of Costs.

Is the Respondent’s Preliminary Objection merited? 8. What constitutes a Preliminary Objection was set out in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd(1969) EA 696 where the court stated as follows:-“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

Whether the application dated 12/4/2022 was brought under the proper provisions of the law 9. In ground 1 of the preliminary objection, the Respondent contends that the application is fatally defective as Section 51(2) of the Advocates Act and Rule 7 of theAdvocates Remuneration Order are only applicable to Advocate and Client Bill of Costs and not Party and Party Bill.

10. Section 51 of the Advocates Act provides as follows;“51. General provisions as to taxation(1)Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.(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.”

11. Rule 7 of the Advocates Remuneration Order states that:“An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”

12. A plain reading of the above provisions indicate that they are only concerned with an Advocate’s costs as opposed to costs between parties to a suit. However, this court is of the considered view that the said provisions cannot be read in piecemeal since there is no other known separate regime that governs the enforcement and recovery of taxed costs as between a Party and Party. The two aforesaid said provisions must be considered alongside Rule 2 of the Advocates Remuneration Order which clearly states that the Order applies to both the taxation of an Advocate and Client Bill of Costs as well as party and party Bills. It states thus:“2. Application of OrderThis Order shall apply to the remuneration of an advocate of the High Court by his client in contentious and non-contentious matters, the taxation thereof and the taxation of costs as between party and party in contentious matters in the High Court, in subordinate courts (other than Muslim courts), in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) and in a Tribunal established under the Rent Restriction Act (Cap 296).”

13. In the premises, this court rejects the Respondent’s contention that the Applicant’s application was brought under the wrong provisions of the law. This ground of objection also fails in the premises.Whether the application dated 12/4/2022 ought to have beeen filed as a miscellaneous cause in a separate suit

14. This court understands the Respondent to be claiming in ground 2 of the objection that the Applicant ought to have filed a separate suit for enforcement and recovery of the taxed costs since in its view, judgment cannot be entered in the same case as that in which the Party and Party costs were taxed. In this court’s view, this contention is erroneous as only an advocate and client bill of costs needs to be filed in a separate miscellaneous cause. Party and Party costs should be taxed and recovery enforced in the same matter where the award of costs was made. The court find guidance in the sentiments of Kasango J in Geoffrey Njuguna Munga v Geoffrey Karongo & 9 others [2021] eKLR that:“I am not sure why the bill of costs were not file under the files where the costs were awarded and one does therefore wonder how the taxing master was able to proceed with the taxation without considering the proceedings to which the costs apply. I have noted a pattern or habit which has cropped into use where parties on being awarded costs open a new file, more often a Miscellaneous file, where there are costs for taxation. That opening of new files denies the taxing master, and the High court if there is a reference, of having sight of proceedings and pleading which are all necessary in the determination of the taxation of the bill of costs. In my view that habit is undesirable for the attainment of a just decision on costs.”

15. In any event, the overriding objective under Section 1A of the Civil Procedure Act enjoins courts to ensure expeditious and affordable disposal of civil matters. That means that even if it were true that a separate suit ought to be filed, which is not in this case, it would be self-defeating to strike out the application as that would only subject the parties herein to unnecessary expenses and costs. In the circumstances, this ground of objection fails.

Whether the Applicant’s application dated 12/4/2022 is merited 16. As noted hereinabove, Section 51(2) of the Advocates Act gives this court the mandate to enter judgment for taxed costs if a Certificate of costs has been issued following the decision by a taxing officer and the same has not been set aside or altered. In Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR the Court stated as follows-“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 ...”

17. Given that there is no pending reference against the decision of the taxing officer and the Certificate of Taxation dated April 5, 2022 has not been set aside or altered by this court, the court hereby enters judgment in favour of the Applicant as against the Respondent for the taxed costs in the sum of Kshs 38,562. 50. Pursuant to Rule 7 of the Advocates Remuneration Order, the sum will attract interest at the rate of 14% per annum from May 26, 2021 being one month from the date on which the Bill was served on the Respondent.

Whether the Applicant owes the Respondent the sum of Kshs 29,410/- arising from overpayment of costs? 18. This issue is borne out of the Respondent’s Notice of Motion dated April 26, 2022 brought under Section 1A, 1B & 34(1) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Respondent is seeking an order that the court do compel the Respondent do refund the sum of Kshs 29,410/- being the difference between the sum of Kshs 67,972. 50 which was paid to the Applicant on March 11, 2021 and the taxed costs of Kshs 38,562. 50. It also seeks costs of the application.

19. The application is supported by the Affidavit of Benard Busiku Chenge and the grounds thereon are a reiteration of those in the Replying Affidavit filed in response to the Applicant’s application dated April 12, 2022.

20. The Applicant responded to the application vide a Replying Affidavit sworn on May 4, 2022 by Zul Mohamed. He averred that Sections 1A and 1 B of the Civil Procedure Act, on which the said Application is based, does not confer jurisdiction upon this Court to hear or grant any orders. He stated that it is clear from the subject Bill of Costs that the Applicant was given a credit in the sum of Kshs 67,972. 50 being amount paid by the Applicant and the court was to tax the Bill for the remaining balance of Kshs 84,650. 27.

21. The court record shows that the taxed costs herein arose from an order by Justice Mbogholi of January 21, 2021. Vide the said order, the learned Judge awarded the Applicant herein half the costs for an application dated October 24, 2019 for recovery of taxed costs of an initial Advocate and Client Bill on the basis that the Respondent payed the taxed costs but failed to notify counsel for the Applicant. The Respondent has exhibited email conversations with the Applicant to the effect that it paid the Applicant the sum of Kshs 67,972. 50 prior to the filing of the Party and Party Bill of Costs. Indeed as evidenced by the Certificate of Taxation adopted as a judgment of the court hereinabove, the Party and Party Costs were subsequently taxed at Kshs 38,562. 50. The Applicant’s contention that no amount is due from it since the sum of it already factored in the received sum of Kshs 67,972. 50 in the Party and Party Bill of Costs is not sensible given that these were costs in respect to a simple application.

22. In the premises, the court finds that the Applicant owes the applicant the sum of Kshs 29,410/- being the amount paid in excess of the taxed costs and should refund the same.

23. For the foregoing, the court finds and holds as follows:1. The Applicants Notice of Motion application dated April 12, 2022 is allowed in terms of prayers (1) and (2).2. The Respondent’s Notice of Preliminary objection dated July 8, 2022 is dismissed.3. The Respondent’s Notice of Motion application dated April 26, 2022 is allowed in terms of prayer (2).4. Each party shall bear own costs of the two applications and the Notice of Preliminary Objection.Orders accordingly

DELIVERED, DATED AND SIGNED THIS 1STDAY OF DECEMBER 2022. J.N. MULWAJUDGE