[2017] KEHC 739 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

COMMERCIAL & ADMIRALTY DIVISION

AT MOMBASA

CIVIL CASE NO. 113 OF 2015

TAIB ALI TAIB..................................................................PLAINTIFF

VERSUS

AMINA ADEN ABDI...................................................DEFENDANTS

R U L I N G

1. Before court for determination are two applications filed by either sides and a preliminary objection by the defendant dated 29/9/2015.

2. The plaintiffs application dated 30/8/2015 was filed with the suit, was dealt with experte,certified urgent and charging orders issued. What pends on it is prayer C seeking summary judgment for the sum sued for from the defendants.

3. The defendant’s application on the other side seeks to review and set aside the orders made on 1/9/2015 by which a charging order was imposed over the defendants properties known as plot no. 1959 CR 16105, Malindi, Plot No. 3539 (original 3476/64) Plot No. 1958 CR 16104 and Plot No. 1957 CR 16102. The preliminary objection on its side faults the Notice of Motion and the suit for being in contravention of sections 3(3) Law of Contract Act, Section 52 Advocates Act and Order 36 Rule 1(i) of the Civil Procedure Act. Infact the defendant contends that the court lacks jurisdiction to entertain the motion and seek that it be dismissed on that score.

4. Having directed that the two applications and the Notice of Preliminary Objection be heard together and having considered what each entails, I shall deal with the preliminary objection first and only if it fails will there be need to consider the applications. In the event of the objection failing and there then emerging a need to consider the applications, then I will handle the defendants application before considering the plaintiffs application which I consider terminal in nature by virtue of the prayer it seeks being able to determine the suit if found to be merited.

Preliminary Objection

Does Order 36 Rule 1(i) oust jurisdiction of the court to determine the application dated 30/8/2015?

5. In his submissions Mr. Murithi faulted the application for havingbeen made prematurely and too early even before the defendant filed an appearance. He submitted that an application for summary judgment can only be filed after an appearance is filed and before the defence is filed and not outside the perimeters walls erected by the two events.

6. Order 36 Rule 1 provides:

(1) “In all suits where a plaintiff seeks judgment for—

(a) a liquidated demand with or without interes; or

(b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser,

where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits”.

7. To my mind Order 36 as designed is to expedite the determination of disputes expeditiously and avoid time wastage where it can be seen from the pleadings that no justice would be served to allow a matter continue pending by invitation of evidence. It being a subsidiary legislation it must always be measured against the overall purpose of the court and justice system to determine disputes between the parties in a just manner. It must be remain what it is; a handmaid of justice not its master.

8. This then brings the questing why Order 36 1(i)b is worded to create a window for filing an application for summary judgment.

The logic, to this court, is that as the name suggest summary judgment should be handled expeditiously in that it should be only available where the pleadings as advanced by the plaintiff is so plain and obvious that the debt is due and justly owed. It would however not be necessary where no appearance is filed as the plaintiff would be entitled to request for judgment in default of appearance. Even in this case there would have been no need to consider the application had defendant defaulted to file appearance and defence.

9. However summary judgment oftenly goes hand in hand with an application for striking out a defence. I therefore do not find that Order 36 Rule (1) 1b has the effect of ousting the court’s jurisdiction otherwise vested by the Act.

10. In any event, coming from and being cognizant of the overriding powers of the court, any rule that seeks to stifle or fetter a discretion granted to court would manifestly ran counter those objectives and must be asked to give way. I find support from the court of Appeal decision in Abok James Odera t/a A.J. Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR where the court said:

“……..where a defect does not occasion any prejudice on the parties, this court will strive to cure the defects in the interests of justice and fairness, in a bid to have the appeal determined”.

11. This being a suit rather than an appeal, I will substitute the word appeal with suit or matter and find that no prejudice has been demonstrated to have been occasioned or capable of being occasioned to the defendant by the act of the plaintiff filling the application with the suit. I say no prejudice has been occasioned because as the file stands today, the defendant has filed a Replying affidavit and a statement of defence and has been able to put forth his grounds in resistance to the application for summary judgment. His right to be heard has been fully protected and I did not hear Mr. Murithi to say that his client has been hampered in any way in putting across her case.

12. In any event a court considering an application for summary judgment is duty bound to investigate if there exists even asingle triable issue. Once a single triable issue is discerned the court has no discretion but the defendant has to be given the liberty to unconditionally defend. The Court of Appeal and the High Court in Osodo vs Barclays Bank International Ltd [1981] KLR 30, Nandlal Jivraj Shah & 2 Others vs Kingfisher Properties Ltd[2015] eKLR , Postal Corporation of Kenya vs Inamdar & Others [2004] 1 KLR 359 Transcend Media Group Ltd vs IEBC and Job Kilach vs National Media Group Ltd & Others [2015] eKLR have demonstrated that in summary judgment applications, the court is duty bound to look at the defence advanced however advanced. I therefore find that the expression ‘where the defendant has appeared and not filed a defence’ are in the rules purely for purposes of seeking to encourage promptitude and do not confine a plaintiff to the 14 days window provided under Order 7 Rule 1 Civil Procedure Act. The only purpose as was said by Mudan JA, in Continental Butchery Ltd vs Nthiwa [1978] KLR is to ‘eliminate delay in administration of justice which would keep litigants out of their just dues or enjoyment of their property’.

Does section 3(3) Law of Contract Act forbid the suit and the application?

13. The simple and straight import of section 3(3) which require no novel interpretation, is that no suit can be grounded on a contract for disposition of an interest in land unless the same is in writing and signatures of the parties witnessed, save for contracts pursuant to public auctions and where a resulting trust is pleaded. The contract subject of this suit is exhibited at page 45 of the plaintiff’s bundle of documents and is clearly headed ‘INSTRUCTIONS SHEET’.

14. Having read that agreement and all the papers filed in this matter I see no contract for the disposition of an interest in land to merit invocation of section 3(3) Law of Contract Act. This aspect of the objection was totally mis-concerned and is not very far from what was said by Sir. Charles Newboid in Mukisha Biscuits Ltd vs West End Distributors Ltd [1969] E.A to the effect that the improper raising of all manner of points as preliminary objection does nothing but only confuse issues and waste time. That limb of the objection fails and is dismissed.

Does Section 52, Advocates Act forbid the suit?

15. This limb of the objection is also the fulcrum upon which the defendants application dated 14/9/2015 rotates. Besides the complaint that the orders issued experte appear to be final and made in a matter said to be hotly contested and protracted its determination would largely determine the application dated 14/9/2015.

16. Section 52 Advocates Act reads:-

Charging orders

“Any court in which an advocate has been employed to prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate:

Provided that no order shall be made if the right to recover the costs is barred by limitation”.

17. This provision is the last in part IX of the Act which is devoted to providing for remuneration of an advocates. The general design is to provide for basis of charging fees, agreements on fees and modes of determining disputes regarding fees and recovery thereof Section 52 is to this court one of the provisions on recovery of fees. I read the section to say that were an advocate has been employed, and he has duly executed his instruction but fees remain unpaid and there is a dispute regarding the quantum of fees then the first stop shop for remedy for such an advocate is to preserve the property recovered out of industry and instrumentality by him. I do not read the provision to say that in each and every case an advocate has been deployed, even where the fees has been agreed, there must be taxations. If such a construction were to be given to the provision then it would not only defeat the very purpose of section 44, and generally stifle the parties otherwise unfettered right to bargain and enter into agreements and derive benefits therefore. Further if the court were to endeavor to pursue such an interpretation it would be going against the well-established principle of law that parties are entitled to the terms of their agreements and the court has no duty rewriting same.

18. In interpreting section 52, the court must adopt a purposive interpretation that meets the intention of the legislature without necessary making one provision to override and render the rest purposeless. I give to the provisions of section 52, Advocates Act the interpretation that an advocate who has recovered for a client an asset or property and whose fees remain unpaid is entitled to get a charge over that asset or property provided that it is proved that the fees remains unpaid and further that the asset sought to be burdened with a charging order was preserved or recovered through the instrumentality of the advocate. Where the fees has been ascertained by an agreement there is no need to engage the parties and ask the court to spend its time in the process of taxation which to this court is aimed at ascertaining the fees payable. To accede to the defendant’s objection would be to render an absurd and untenable interpretation of the Act which at Section 45 (6) says:-

“subject to this section, the costs of an advocate in anycase where an agreement has been made by virtue of thissection shall not be subject to taxation nor to section 48”

19. It is clear to me that where there is an agreement on fees to an advocate, there is no need or liberty for taxation as much as there cannot be liberty to render a fee note prior to filing a suit for recovery.

20. In this matter, there has never been challenge to have the agreement dated the 10/12/2001 set aside in terms of section 45(2) and (2A) of the Act. That being the position, the agreement dated 10/12/2001 is to this day valid and binding on the parties and therefore there is no bar to the suit and the application to be premised upon the provisions of Section 52. The objection therefore was and remain totally misconceived cannot succeed and is therefore dismissed with costs.

Should the charging Order be set aside?

21. As pointed out hereto before, the defendant faults the court to have issued its Orders of 1/9/2015 without regard to the provisions of section 52, Advocates Act. I have held that nothing in section 52 bars this suit nor the application. However the defendant has raised other issues being that the agreement does not identity the property now burdened by a charging order as one of the assets to be recovered and that the order was made, therefore, without jurisdiction and thus ought to be set aside ex debito justitiea. On that basis the defendant has made extensive submissions on the basis that the court lacked jurisdiction to grant the Orders it did make. I have delivered myself on the propriety of the suit and that nothing is in the law cited that divests this court of jurisdiction in this matter and will not repeat myself on that point. I will however seek to find out if indeed the property now charged was a proper property to be so charged.

22. The retainer agreement, otherwise called instructions sheet say:

“I AMINA ADEN ABDI do hereby instruct the firm of TAIB A. TAIB ADVOCATES to represent AMINA ADEN ABDI in the matter of RECOVERY OF MY PROPERTY UNDER THE MARRIED WOMEN’S PROPERTY ACT INCLUDING FILLING SUIT & APPEALS THERETO”.

23. By reading this portion of the agreement there is no doubt that no particulars of the asset to be recovered were given. However, it is clear that the instructions were towards recovery of property under the Married Women’s Property Act. The pleadings filed have not been exhibited but there is a decree issued pursuant to such instructions and what the plaintiff regards as his instrumentality.

24. In that decree, at Order 5, page 48 of the plaintiffs bundle of documents, 5 parcels of land have been identified and named as PLOT NO. 3539 (original No. 3476/64), 1957, 1958 and 1959, which were then identified and decreed by consent to be sold so as to avail and realize the payment to the defendant here as the plaintiff in that suit, of the decretal sum of Kshs.24,000,000. 00.

25. When the two documents, instructions sheet and the decree, are read together it leaves no doubt that the suit in which theplaintiff represented the defendant was determined by agreement that the four named parcels of land would be sold to realize the decretal sum due to the defendant herein. I therefore see no difficulty in finding that the three parcels of land against which a charging order was sought and issued were indeed the property preserved and recovered by the instrumentality of the advocate, plaintiff herein, and were properly and legally subjected to the charging order. To that extent the position taken by the defendant that the property were not revealed in the agreement is not only lacking in candour but to his court unduly pedantic and flippant. Being so ill founded, the application lacks not only foundation but also merit and is hereby dismissed with costs.

Is the plaintiff entitled to summary judgment?

26. I have hereinabove adverted to the principles applicable for application by a court in considering an application for summary judgment. Briefly put, they are that the suit must be for a liquidated claim with or without interest or for recovery of land with or without mesne profits and the claim must be clear and straight forward against which the defendant has failed to raise a defence with any triable issue.

27. In this matter, the plaint claims the sum of Kshs.12,463,121 being the agreed fees plus costs, disbursements, expenses taxesand other miscellaneous expenses together with interest thereon at 24% p.a. calculated on compounded basis. I have no doubt that the plaintiffs claim is a liquidated claim with interests thereon. The question one has to ask and answer is whether or not the defendant has in response to the claim raised any issue that can be seen to raise a triable issue.

28. The plaintiffs suit is grounded on fees for legal services rendered to the defendant. The fact of legal services having been rendered is not in dispute. What is in dispute is the propriety of the agreement for fees. On that score the defendant pleads and contends that being an illiterate, unable to read or write, and while relying on the plaintiff as her counsel at her hour of distress, she did place her thumb print on the instructions sheet without being given an explanation that it was the basis of remuneration to the plaintiff. The defendant further alleges that that the plaintiff did receive monthly payments of Kshs.30,000. 00 and did retain part of it and that the sums so far paid by her to the plaintiff is Kshs.800,000/=. However there has never been filed a list of documents or indeed any document to evidence such payment. To this court, since 2010, there has been placed a duty upon the defendant, pursuant to Order 7 Rule 5, to file a list of documents and any witness statements with the statement of defence otherwise a statement in a pleading bereft of any document in support thereof is no more than mere allegations.

29. To this court therefore a matter in the defence that merits consideration as a raising a triable issue is the question of the legality, validity or enforceability of the retainer agreement. Indeed the issues alleged against the advocate are weighty and grave.

30. The question is however the forum to ventilate the same and the timelines for such ventilation under section 45(2) & 2A AdvocatesAct. The statute provides for mode of challenging the agreement,grounds for such challenge and timelines. The law provides.

Section 45(2) & 2A

“ (2) A client may apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years’ standing appointed by the Registrar after consultation with the chairman of the Society for each application and on any such application the Court, whose decision shall be final, shall have power to order-

a) That the agreement be upheld; or

b) That the agreement be varied by substituting for the amount of the remuneration fixed by the agreement such amount as the Court may deem just; or

c) That the agreement be set aside; or

d) That the costs in question be taxed by the Registrar, and that the costs of the application be paid by such party as it thinks fit.

(2A) An application under subsection (2) may be made within one year after the making of the agreement, or within three months after a demand in writing by the advocate for payment under the agreement by way of rendering a fee note or otherwise, whichever is the later”.

31. It is clear to me that this court sitting in the absence of two assessors has no jurisdiction to interrogate the validity orenforceability of the agreement. In any event, the application isby law required to have been brought not later than three months after the demand was made by the plaintiff. It is on oath, and not controverted by the defendant, that the demand was made by a letter dated 25/11/2014 and exhibited at page 94 of the plaintiffs bundle. It was then incumbent upon the defendant to challenge the agreement within three months after the receipt of that demand. In my calculation of time, that challenge ought to have been mounted not later than March 2015. There is no evidence that any such challenge was ever made with the consequence that the agreement remains undisturbed and time to challenge it has since passed. It is safe to say that as at today, based on the materials on record, any allegation challenging the validity of the agreement is statute barred. It then begs the question whether a claim founding defence, however merited, but which has become statute barred, can be said to raise a triable issue?

32. To this court, that defence would be an undoubted a merited and solid one raising weighty and substantial triable issues if theplaintiff took the route charted by the law to exercise her right tochallenge the agreement. Now that none has been mounted, and time having lapsed to mount the challenge, any right that then subsisted in favour of the plaintiff lapsed and died with his choice not to make the challenge. A claim that is dead by operation of law cannot be a reasonable claim nor defence. It certainly cannot be said to raise a triable issue. It is nonexistent. I do find that there is no triable raised in the defence as to entitle the defendant to defend this suit.

33. Without a defence, and even if the suit be for a liquidated claim, must the plaintiff get summary judgments as of course? Had this been an application to strike out, the defence, I would have proceeded to so find. However this is an application for summary judgment for sums disclosed as special damages. These must not only be specifically pleaded but strictly proved.

34. By a letter dated 25/11/2014 the plaintiff rendered an itemized fee note in the sum of Kshs.12,398,121. 00. That fee note has aschedule of expenses incurred and payments received and theirdates. There is no affidavit nor a letter by the defendant challenging any of the sums alleged to have been spent and received. A response to the demand or a replying affidavit to the application would have provided a valuable glimpse on what factual position the defendant took on the matter. None is availed and to this court therefore the claims is not controverted. I take it that expenses were as tabulated which when account is taken of sums paid by the defendant gave a balance of Kshs.740,121. 00. That was upto 14/10/2014 that schedule includes courier services, court fees, service fees, travelling and accommodation as well as what the advocate calls holding brief. To this court it is a reasonable, even if not an accurate account of sums repent and that received.

35. However, the fee note seems to duplicate some of the disbursements as follows:-

Travel and accommodation 702,540. 00

Filling fees 32,269. 00

Attestation 4,040. 00

Holding brief 32,272. 00

Service fees 34,000. 00

Total 815,121. 00

36. Summary judgment being a discretionary matter geared to achieve ends of justice, I consider it only just that fordisbursement the schedule provided at page 92 & 93 of theplaintiffs bundle represent a more accurate account of theexpenses and receipts and I would rely on it rather than the fee note.

37. I therefore enter judgment for the plaintiff as follows:-

Agreed fees 10,000,000. 00

VAT at 16% 1,608,000. 00

Disbursements not subject

to VAT 740,121. 00

TOTAL 12,348,121. 00

38. On interests, the law under section 26 Civil Procedure Act grants to court discretion to award same and to fix the rate and date of commencement. However this being an advocate/client dispute there is also Rule 7 of the Advocate (Remuneration Order), which provide as follows:-

“ An advocate may charge interest at 14 percent 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, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full.

The applicable law leave no discretion on the rate of interest.

39. On the sum awarded, I Order that the plaintiff shall be entitled to interest at 14% per annum from the 26/12/2014, being after the 30th day after the demand was made.

40. I equally award to the plaintiff the costs of these suit, that of the two applications as well as the preliminary objection.

41. It is so ordered.

Dated and delivered at Mombasa on this 9th day of October 2017.

P.J.O. OTIENO

JUDGE