[2020] KEHC 675 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

MISCELLANEOUS APPLICATION NO. 127 OF 2019

SILVANUS OSORO ONYIEGO...........................................................APPLICANT

VERSUS

EDWARD ABOKI BEGI T/A ABOKI BEGI & CO. ADVOCATES ..RESPONDENT

RULING

1. The applicant filed a Notice of Motion dated 2nd August 2019 which is supported by his affidavit sworn on even date and grounds set out at the foot of the application. He sought the following orders in his application;

a. That there be a stay of execution of the ruling dated 4th April 2019 and Certificate of Taxation given on 4th April, 2019 and issued on 11th April 2019 certifying costs due to the Respondent from the Applicant at Kshs. 1,950,955/= pending the outcome of this application;

b. That the ruling dated 4th April 2019 and Certificate of Taxation given on 4th April 2019 issued on 11th April 2019 be set aside;

c. That the proceedings in High Court Miscellaneous Application Number 98 of 2019 be set aside or stayed pending the hearing and determination of this application.

d. That the costs of this application be awarded to the applicant.

2. The genesis of the matter is Kisii High Court Election Petition No. 5 of 2017 (herein “the Election Petition”) where the applicant had been enjoined as the 3rd respondent. He claims that he instructed the firm of Musyoki Mogaka and Company Advocates to represent him in the matter and the firm represented him throughout the course of the Election Petition. He was therefore surprised to learn that the firm of the respondent, Aboki Begi and Company Associates Advocates, had filed for taxation against him in Miscellaneous Application Number 52 of 2018.

3. The applicant claims that he never instructed the firm of Aboki Begi and Company Associates Advocates or Edward Aboki Begi for that matter, to represent him in the Election Petition. He also denies ever being served with a Bill of Costs or Notice of Taxation. The affidavits of service of William Ogwara who deposed that he had served the applicant with Taxation Notices are challenged by the applicant.

4. Regarding the first affidavit of service in which the process server deposes that he served the applicant with a Taxation Notice dated 16th October 2018, the applicant points out the postal address is not indicated and there is no postage receipt annexed to the affidavit. He also contests the process server’s assertion that he tendered another Taxation Notice upon the applicant’s secretary attached to his office in Nyamarambe on 13th December 2018. The applicant avers that the process server did not state the time or exact location of the service or the name of the purported secretary and that in any case he has no office or Secretary at Nyamarambe.

5. As for the Taxation Notice dated 7th March 2019 which was sent by registered post to postal address P.O. Box 991 Nyamarambe, the applicant states that he is not the holder of the said postal address nor does he know whom it belongs to. He deposes that the three affidavits of service of William Ogwara are defective andfurther that none depose that he was served with a Bill of Costs. For those reasons, the applicant contends that the Certificate of Taxation and the ruling dated 4th April 2019 were irregular and ought to be set aside.

6. For his part, the respondent insists that he represented the applicant together with other counsels namely Mrs. Morara and Mr. Mokua throughout the course of the Election Petition. He states that he does not work in the firm of Musyoki Mogaka & Co. Advocates and did not get instructions from the said firm to hold their brief.

7. The respondent avers that two days before the hearing of the Election Petition on 23rd October 2017, he received a call from the applicant that he had been abandoned by the advocates he had retained and requested him to represent him in the said petition. The respondent met the applicant in Kisii Town on 22nd October 2017 together with counsels Mrs. Morara and Mr. Mokua. It was agreed that he be the leading counsel in Election Petition. He prepared for trial and the following day, he appeared for the applicant and came on record as the lead counsel in the matter. The respondent claims that even after the Election Petition was dismissed the applicant delivered to the respondent counsel two bundles of the record of appeal and he is dishonest in claiming that the respondent did not represent him.

8. Counsel further deposes that the applicant was aware of the taxation proceedings and always sent his office manager by the name Mr. Moriango who worked in his constituency office at Nyamarambe town. The respondent deposes that after he obtained the Certificate of Taxation, he filed Miscellaneous Application No. 98 of 2019 seeking judgment for the taxed amount. The application was served at Nyamarambe offices as other documents in the taxation had been served and the applicant appointed the firm of Muriuki Njagagua & Co. Associates to act for him. However, at the hearing of the Miscellaneous Application there was no appearance for the applicant and the court, being satisfied that the hearing notice had been served and there was no response, granted the orders sought in the application.

9. The respondent avers that there has since been no appeal or review of the orders of the court made in Misc. Application No. 98 of 2019 and thus a stay cannot be issued over a valid judgment of the court. He also challenges the competency of the application on the grounds that the law provides for the manner in which taxation by a taxing officer should be challenged and that has not been done in the present case.

SUBMISSIONS

10. The parties disposed of the application by way of written submissions.

11. The applicant’s learned counsel submits that once the applicant denied giving instructions to the respondent, the burden shifted to the respondent to prove that he had instructions. He submits that the respondent did not annex a Notice of Appointment or Notice of Change of Advocates to demonstrate that he had instructions in accordance with Order 9 Rule 5 and 7 of the Civil Procedure Rules and he cannot rely on his appearance in court to show that the applicant was aware and approving of his appearance. It is submitted that when there is no evidence of a retainer or retainer agreement, the advocate is taken to have been on a frolic of his own.

12. Counsel submits that he intends to file a reference against the ruling on taxation and apply for the setting aside of the judgment in Miscellaneous Application No. 98 of 2019 and the stay of execution sought will afford the applicant the opportunity to do so. He submits that the Bill of Costs, the Notice of Ruling, the application for Judgment and the Notice of Judgment in Miscellaneous Application No. 98 of 2019 were not served upon the counsel on record and there is no Notice of Hearing or Mention which bears the stamp of the Applicant’s counsel. He submits that the applicant is likely to suffer irreparable loss if he is condemned to costs that were not earned with his instructions.

13. The respondent submits that it is clear from the court record in the Election Petition that he represented the applicant as lead counsel. Counsel submits that for a taxing officer to embark upon taxing the Bill of Costs, it must be established that there exists an advocate- client relationship and the advocate was instructed as the law provides. That in the instant case, the Deputy Registrar perused the record and was satisfied that the respondent had represented the applicant. Counsel refers this court to the provisions ofSection 51 (2) of the Advocate’s Act in support of the submissions that once a Certificate of Costs is issued it is final and conclusive.

14. Counsel referred to the case of Ochieng’ Onyango and Kibet & Ohaga Advocates vs Akiba Bank Limited where the court held that it is not the law that an advocate must obtain a written consent from client before he commences a matter. He argues that his averment that he received oral instructions from the applicant have not been controverted by the applicant in any way and that the applicant should be estopped by his conduct from denying the existence of an advocate-client relationship. Counsel submits that the applicant was served with the application preceding the hearing of Miscellaneous Application No. 98 of 2019 and a Notice of Appointment was later filed but there was no appearance for the applicant during the hearing of the matter. He also submits that no reference was filed on the decision of the taxing master therefore the decision was final.

ISSUES

15. From the submissions, the application and the affidavits of the parties herein, I find that the issues for determination are;

a. Whether a stay of execution of the ruling dated 4th April 2019 and Certificate of Taxation given on 4th April and issued on 11th April should be issued;

b. Whether the ruling dated 4th April 2019 and Certificate of Taxation given on 4th April and issued on 11th April ought to be set aside;

c. Whether the proceedings in High Court Miscellaneous Application Number 98 of 2019 should be set aside or stayed pending the hearing of this application.

ANALYSIS AND DETERMINATION

16. It is not in dispute that the applicant, Silvanus Osoro Onyiego, was the 3rd respondent in Election Petition No.5 of 2017. At the conclusion of the matter, the respondent filed a Bill of Costs dated 15th February 2019 under Misc. Application No. 52 of 2018. The Bill was taxed at Kshs. 1,950,955/- on 4th April, 2019 and a Certificate of Taxation was issued on 11th April 2019. Upon obtaining the Certificate of Taxation, the respondent filed Miscellaneous Application No. 98 of 2019 seeking judgment for the taxed amount. The respondent’s averment that judgment was issued in Miscellaneous Application No. 98 of 2019 is unopposed.

17. The applicant claims that he did not give instructions to the respondent to represent him in the Election Petition. It is also his position that he was not served with the Bill of Costs or the Notice of Taxation in Misc. Application No. 52 of 2018.

18. This court is being asked to determine whether the court should issue orders staying execution of the ruling and the Certificate of Costs emanating from the Bill of Costs pending the determination of this application and also set aside the ruling and the Certificate of Taxation. The respondent refers this court to the decision in Musyoka Kimeu&Co; Adv v Makata Savings & Credit Co-Operative Society Ltd [2019] eKLRwhere the court held that the applicable provision in such circumstances is Order 42 Rule 6 of the Civil Procedure Rules. In that case, the court held;

11. On the 2nd issue, the Court has power to order stay in cases of taxation for costs as exists in the Civil Procedure Rules. Taxation of costs is part of the execution process, complete with its provisions for stay of execution, under the Civil Procedure Rules.

12. It follows, in my view, that the Order 42 Rule 6 with regard to stay of execution will apply to proceedings, which are of a civil nature, for the reference of an objection to the Court from the taxation of a Bill of Cost by a Taxing Officer of the Court under the Advocates’ Remuneration Order.

19. The factors to be considered in determining whether to grant stay of execution were laid out by the Court of Appeal in Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others eKLRthus: -

“...The law as regards applications for stay of execution, stay of proceedings or injunction is now well settled. The applicant who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated…”

20. In the event that one is dissatisfied with the determination of the taxing master as the applicant in this case is, the law provides a procedure to be followed in challenging that decision at paragraph 11of theAdvocates (Remuneration) Order. The provision stipulates;

“11. (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.

(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(4) The High court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2)for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”

21. Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly adhered to as there are good reasons for such special procedures. (See Speaker of the National Assembly v James Njenga KarumeCivil Application No. Nai. 92 of 1992 [1992] eKLR).

22. In the case ofMusyoka Kimeu & Co; Adv v Makata Savings & Credit Co-Operative Society Ltd [2019] eKLR which the applicant sought to rely on, the applicant in that matter had filed a reference against the decision whose execution he sought stay. Similarly, in the case of Labh Singh Harman Singh Ltd vs. Attorney General & 2 Others [2016] eKLR which was cited by the applicant herein, the application for stay of execution of the Certificate of Taxation was filed pending hearing and determination of the reference filed in accordance with paragraph 11 of the Advocates’ Remuneration Order.

23. The application before this court is not a reference as prescribed in paragraph 11of theAdvocates (Remuneration) Order.

24. Moreover, a judgment in Miscellaneous Application No. 98 of 2019 has already been entered with respect to the Certificate of Taxation in accordance with Section 51(2) of the Advocates Act which provides;

“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.”

25. In his written submissions, counsel for the applicant urged this court to grant stay of execution to afford the applicant the opportunity to file an application setting aside the judgment entered in Misc. Application No. 98 of 2019 and to file a reference against taxation. These were not the orders sought by the applicant in this case. The first order sought by the applicant is for stay of execution of the ruling and Certificate of Taxation pending the outcome of this application. The second order sought by the applicant is the setting aside of the ruling and Certificate of Taxation dated 4th April 2019 which I have shown cannot be granted in this case as this is not a reference as prescribed by the law. The applicant has also sought to set aside the proceedings in Misc. Application No. 98 of 2019 yet a judgment has already been entered in the matter.

26. It is a principle of law that parties are bound by their pleadings. The court is similarly bound to determine the issues raised by the parties in their pleadings and cannot adjudicate upon matters different to what was raised in the pleadings. (See Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR &Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR)

27. In entering judgment based on a Certificate of Taxation as provided in Section 51(2) of the Advocates Act the court is required to interrogate whether the retainer is disputed. The issues raised by the applicant concerning the retainer should have been raised in Misc. Application No. 98 of 2019. The application before this court is not for setting aside of the judgment entered in Misc. Application No. 98 of 2019. Therefore, in as much as the applicant contests the existence of an advocate/client relationship between him and the respondent, this court cannot make a determination on the issue.

28. Consequently, the application is dismissed with costs to the respondent.

Dated, signed and delivered at Kisii this 4thday of December 2020.

R.E.OUGO

JUDGE

In the presence of:

Advocate For the Applicant Absent

Advocate For the Respondent Absent

Ms Rael Court Assistant