[2023] KEHC 24202 (KLR)

Sherman Nyongesa & Mutubia Advocates v Sammy Mwangi Kamau t/a Mwangiland Services (Miscellaneous Application E001 of 2022) [2023] KEHC 24202 (KLR) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24202 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application E001 of 2022

DKN Magare, J

October 24, 2023

Between

Sherman Nyongesa & Mutubia Advocates

Applicant

and

Sammy Mwangi Kamau t/a Mwangiland Services

Respondent

Ruling

1. This is a Ruling on an Application dated 27th February 2023 seeking to set aside or vary the Ruling on Taxation dated 30th August 2022.

2. In the alternative, the Application seeks that the Bill of Cists dated 3rd February 2022 be taxed afresh before another Taxing Officer.

3. The Application is supported by the Affidavit of Wafula William, Advocate and is based in the material grounds that:a.The Taxing Officer did not consider that there was Advocate Client instruction fees that is yet to be paid.b.The Taxing Officer err3d in summing up that the Party to Party Costs settles the Advocate Client Bill of Costsc.The Taxing Master did not consider the Applicant’s submissions and documents in support of the Bill of Costs.

4. The Respondent filed a Replying Affidavit deponing inter alia that:i.The Taxing Officer reached a correct and just Decision.ii.The fee note was based on Advocate Client charges and was fully settled.iii.The Applicant was attempting to charge twice.iv.Reasons for the Ruling were contained in the Ruling.

Analysis 5. I have perused the impugned Ruling and the rival Application and Response thereto.

6. I note that the Taxing Master dismissed the Applicant’s Bill of Costs dated 3rd February 2022 on the basis that the Applicant raised a fee note which the Respondent fully settled and that the fee note constituted an agreement such that the Applicant was not entitled to raise the Bill of Costs. The Taxing Master relied on the dicta in the case of Corporate Insurance Company Limited v Kang’ethe and Mola Advocates [2021] eKLR which I will detail later in this Ruling.

7. Before embarking on the issues raised by the Application, I wish to make comments on the ground raised by the Applicant that the Taxing Master erred in referring to two different Bills of Costs dated 16th December 2021 and 3rd February 2022. This is contained in paragraph 3 of the Supporting Affidavit as follows:Upon perusal of the said Ruling, it is discovered that the Taxing Master was referring to two different Bills, one by the Applicant dated 3rd February 2022 and a different one dated 16th December 2021 which she used to arrive at her conclusion.

8. It is not in vain that Parliament had the wisdom to enact Section 1A (3) and 99 of the Civil Procedure Act as follows:(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.Section 99 of the Civil Procedure Act as follows:“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

9. I conceptualize and contextualize the above law and juxtapose it with the Applicant’s averment in the Affidavit because the matter appertains a law firm and the deponent thereto is an Advocate. Parties should be candid and especially so advocates who owe a duty to the court, as officers of the court, to facilitate the path to justice.

10. I say so because on the perusal of the Ruling, I note that such an error is the one anticipated for correction through the slip rule under Section 99 of the Civil Procedure Act and had absolutely no impact on the reasoning of the Taxing Master as to be erroneously taken to be contradictory.

11. I am thus not persuaded that the Taxing Master’s apparent error in stating two dates for the subject Bill of Costs when only one was on record is an error to warrant serious judicial consideration because it can be remedied through Section 99 of the Civil Procedure Act.

12. The Applicant’s case is that this Court should interfere with the Decision of the Taxing Master dated 30th August 2022 dismissing the Applicant’s Bill of Costs dated 3rd February 2022.

13. The Respondent on the other hand persuades this Court to find that the impugned Ruling was correct and just.

14. The finding of the Taxing Master was on the basis that the Bill of Costs dated 3rd February 2022 was unwarranted because the fee note raised by the Applicant was fully settled by the Respondent.

15. I note that the Applicant did not dispute the fact that the Respondent had fully settled the fee note as raised.

16. The Applicant however made attempt to submit that the Taxing Master misdirected herself in summing up that the Party and Party Costs settles off the Advocate Client Bill of Costs. This was raised as a ground in support of the Application. I have perused the short Ruling and gone over it again. I cannot see any reference to the Party and Party Costs. Nor was it raised in the Application. The Applicant appears to have misconceived the fee note dated 20th March 2021 to be same as Party and Party Costs.

17. The issue was straight forward and pertained whether the raised and admittedly settled fee note fully settled the advocate’s fees as to estop the advocate from subsequently raising further fees. The Applicant did not address this issue in the Application even thought it was crystal clear in the Ruling subject to these proceedings. the Taxing Master correctly considered and appreciated the tenor and impact of the fee note dated 20th March 2021 as having constituted an agreement between the Applicant and Respondent and whose settlement determined the instruction fees payable to the Applicant.

18. I say so because there needs to be understood the distinction of party and party costs and advocate client costs. the former is client’s money while the latter is the advocate’s money. in the case of Samuel Omondi Adera v Lore and Co Advocates [2022] eKLR, court stated as follows:12. Second, there is a distinction between a party and party bill of costs and an advocate and client bill of costs.13. monies taxed in a party to party bill of costs belong to the successful client, and the advocate is generally under an obligation to pay over the same to the successful client (the court notes that the party to party bill of costs was taxed at kshs 168,690/-).

19. I also note that the Applicant raised a ground against the Ruling of the Taxing Master for perceived failure to consider the documents filed in Court. I have perused the List and Copies of Documents dated 22nd April 2022 and filed on 25th April 2022. I note the same are not supported by an Affidavit. Documents cannot form evidence before a court of law unless they are introduced by an Affidavit or produced as such in oral evidence.

20. The Court of Appeal had this in mind when it propounded itself as follows in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR:“18. The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents - this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.19. The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.20. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.21. In Des Raj Sharma v Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa v The State (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.”

21. Therefore, the Taxing Master cannot be faulted for failure to consider documents which were not produced in evidence. A court of law cannot whimsically convert documents into exhibits or evidence. It has to be parties doing so. The Applicant did not. The documents as such had no evidentiary value.

22. I therefore turn to the issue in this suit as to whether the fee note constitute an agreement between the advocate and client so that settling it would bar the advocate from filing a bill of costs.

23. Advocate Client fees agreements bear their foundation on Section 45 of the Advocates Act as follows:Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may-a.before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof; before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;b.before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalfc.Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

24. There is also a plethora of court decisions on this subject.

25. The Taxing Master relied on the case of Corporate Insurance Company Limited v Kang’ethe and Mola Advocates [2021] eKLR in which Majanja J stated as follows: -…settlement of the Advocates Fee Note constituted an agreement on the terms proposed in the fee and based on the first principles of the law of contract, the offer by the Advocates contained in fee was accepted by the Applicant who paid the consideration by way of settling it. If there is any outstanding interest, the Advocates are entitled to claim it through a suit for recovery. In other words, I find that the issue of fees was duly settled when the fee note was paid as such the Deputy Registrar does not have jurisdiction to tax the bill under section 45(6) of the Advocates Act as the settlement constitutes an agreement between the parties.

26. This position was similarly analyzed in the case of Sifa International v Board of Trustees NSSF [2018] eKLR, where it was held as follows:“The law firm has deposed in the replying affidavit that the agreement reached on 6. 8. 2010 was binding on both parties. It is my considered view again that it is not open for the advocate to do and afresh bill of costs merely on account of the demand for the refund being demanded by the applicant. His fee note dated 11th June 2010 was construed to contain the entire costs for services rendered. Once the same was negotiated and agreed, the final figure reached then became the fees due and payable. The advocate seems to want to rely on this agreement and ran away from it at the same time…The demand letter does not in my view vitiate the agreement reached between the parties on 6th August 2010 in respect of that bill… The parties having compromised the fee note of 11th June 2010 are bound by the terms of that agreement thus calling the application of the provisions of section 120 of the Evidence Act into play. For this reason, I am persuaded to and in favour of the applicant that the bill of costs dated 7th December 2016 violates the principle of estoppel by deed...”

27. Further in Abincha & Co Advocates v Trident Insurance Co Ltd [2013] eKLR it was stated thus: -“the Advocate having presented what appeared to be a final fee note upon completion of each brief….is estopped in law and in equity from turning around, between 8 and 11 years later as the case may be, to raise “final” bills of costs.

28. As earlier observed, and now supported by the above authorities, there is no dispute that the Advocate raised the fees which the client settled in full.

29. The fee note and settlement constituted agreement between the Applicant Advocate and the client. As such, I find no basis to interfere with the finding the Taxing Master and decline to set aside her Ruling.

Determinationa.The upshot of the foregoing is that the Application dated 27th February, 2023 is hereby dismissed.b.Each Party shall bear its own costs.c.Orders accordingly.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 24TH DAY OF OCTOBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. K Asige for the RespondentNo appearance for the ApplicantCourt Assistant - BrianPage 3 of 3 M.D. KIZITO, J.