[2022] KEHC 1386 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT VOI

CIVIL MISCELLANEOUS REFERENCE APPLICATION NO. E003 OF 2021

TANNEN GACERI.........................................................................................................................APPLICANT

VERSUS

MWANAISHA SHARIFF T/A SHARIFF AND COMPANY ADVOCATES..............1ST RESPONDENT

C. B. GOR & GOR ADVOCATES.................................................................................2ND RESPONDENT

RULING

Application

1. By an application dated 24th March 2021, the Applicant sought for the following orders: -

1. Spent

2. That the firm of C. B. Gor & Gor Advocates be ordered to tender into the Court an account for all monies paid to the Respondent on account of the judgment and/or settlement entered in (i) Voi PMCC Civil Case No. 24, (ii) Voi PMCC Civil Case No. 25 of 2017, (iii) Voi PMCC Civil Case No. 26 of 2017, (iv) Voi High Court Civil Appeal No. 32 of 2019, and (v) Voi High Court Civil Appeal No. 33 of 2019.

3. That the 1st Respondent be ordered to tender the Advocate-Client bill of costs in (i) Voi PMCC Civil Cases 24, (ii) Voi PMCC Civil Case No. 25 of 2017, (iii) Voi PMCC Civil Case No. 26 of 2017, (iv) Voi High Court Civil Appeal No. 32 of 2019, and (v) Voi High Court Civil Appeal No. 33 of 2019 before the taxing officer.

4. That the taxing officer be pleased to tax the costs in (i) Voi PMCC Civil Cases 24, (ii) Voi PMCC Civil Case No. 25 of 2017, (iii) Voi PMCC Civil Case No. 26 of 2017, (iv) Voi High Court Civil Appeal No. 32 of 2019, and (v) Voi High Court Civil Appeal No. 33 of 2019.

5. That an order for account be issued to the 1st Respondent to account for compensation awarded to the Applicant in the above-mentioned cases.

6. That the court be pleased to grant any other order it may deem necessary in the interest of justice.

2. The application was supported by grounds on the face of the application and the affidavit sworn by Tennen Gaceri, the Applicant herein. The grounds and the averments in the Supporting Affidavit were to the effect that judgment was entered in favour of the Applicant in Civil Case Nos. 24, 25 and 26 of 2017 by the Principal Magistrate’s court at Voi. That the Plaintiff was awarded decretal sum of Kshs. 1,952,576 in Voi Civil Suit No. 24 of 2017, Kshs. 1,977,576 in Voi Civil Suit No. 25 of 2017 and Kshs. 782,000 in Voi Civil Suit No. 26 of 2017. That subsequently, Civil Appeal No. 32 of 2019, was lodged and the parties reached a consent which the Applicant is not privy to.

3. Further, that the appeal was marked as settled on 11th February 2021 where the 1st Respondent is yet to render an account to the Applicant, neither has she taxed her costs in the matter. That the disagreement has arisen concerning the amount that is taxable between the advocate and the client, therefore, the need to refer the matter to this honourable court to exercise its powers. That the Deputy Registrar/taxing officer has power to tax the costs and it is in the interest of justice that the taxing officer does so.

Response by 1ST Respondent

4. The application was opposed by the 1st Respondent’s Replying Affidavit sworn by Mwanaisha Saida Shariff on 19th April 2021 which she stated that it is indeed true that her firm represented the Applicant in Voi PMCC No. 24, 25 and 26 of 2017 where the Applicant was paid a sum of Kshs. 408,240 on the 30th September 2019 as the full and final payment in respect of Voi PMCC No. 26 of 2014 which case involved the applicant personal injury claim which was exactly five days after the 1st Respondent had received money from the 2nd Respondent. That pursuant to the full payment, the Applicant issued the 1st Respondent with a discharge voucher which discharged the 1st Respondent from any future liability on the same claim.

5. The Applicant further stated that PMCC No. 24 and 25 of 2017 attracted appeals Nos. 32 and 33 of 2019 and the said appeals were settled at Kshs. 900,000, which case involved the death of two minors who were aged 9 years (Alexander Oganda) and 4 years (Kennedy Titus) and the general awards for such minors range between Kshs. 400,000 and Kshs. 700,000. That costs of the subordinate court were agreed at Kshs. 200,000 for each file. That after receipt of the monies from the 2nd Respondent, the 1st Respondent summoned the Applicant to the Mombasa chambers for payment on 16th February 2021 but she intimated that she was going to consult some people before she could accept payment.

6. The deponent that the Applicant’s last visit to the chambers was on 16th March 2021 in the company of a person whom she said was her brother. That the said brother went through one appeal file and caused a commotion that the 1st Respondent was misinforming them that the decretal sum, had been reduced in the settlement. That on 22nd March 2021, the 1st Respondent wrote to the Applicant and summoned her to attend again for purposes of making payments but she declined. That on 31st March 2021, the Applicant sent a letter from her current advocates via Whatsapp which letter disclosed that she had filed the reference herein.

7. The deponent further stated that the firm is ready and willing to deposit such sums as would be found but in the meantime prayed that the application herein be stayed pending taxation of the advocate – client bill of costs. That the Applicant is also attempting to lay claims for case No. 26 of 2017 long after she had received and expended her money and that such conduct should not be entertained by this court but instead disallow the reference herein with costs.

Response by 2ND Respondent

8. The 2nd Respondent also opposed the application herein through a Replying Affidavit sworn on 23rd April 2021 by Shishir Suryakant Gor, an advocate and a partner in the 2nd Respondent. The deponent stated that on 27th March 2017, the 2nd Respondent was instructed by Britam General Insurance Company Kenya Limited to act and appear for their insured the 1st Defendant in Voi PMCC No. 24 of 2017. That the 2nd Respondent entered appearance and filed a defence in the case on behalf of the 1st Defendant Julia Njeri Muguro. That the case was heard and determined and the judgment was delivered on 26th August 2019 wherein the Honourable Court found the 1st Defendant 100% liable and judgment was entered for the Plaintiff against the 1st Defendant Julia Njeri Muguro for Kshs. 1,952,576. 00 plus costs and interests. That the 2nd Respondent’s client, Britam, being dissatisfied by the said judgment dated 26th August 2019 instructed the 2nd Respondent to file an appeal in the High Court at Voi on the aspect of quantum damages alone.

9. The deponent states that by consent of the parties, the execution of the judgment or decree passed on 26th August 2019 was stayed in terms of a consent letter dated 17th September 2019. In compliance of the consent order dated 18th March 2020, a sum of Kshs. 2,259,696. 00 being the decretal plus costs and disbursements was deposited with the Bank of India. That in terms of the instructions from Britam, the 2nd Respondent filed an appeal in the High Court at Voi being HCCC No. 32 of 2019 and a record of appeal was filed in the High Court at Voi on 27th November 2020 and served upon the 1st Respondent on 30th November 2020.

10. The deponent for the 2nd Respondent further states that before the appeal was heard and determined, the 2nd Respondent commenced negotiations with the 1st Respondent herein and upon receiving instructions from Britam informed the 1st Respondent that Britam was agreeable to having HCCA No. 32 of 2019 and the lower court file PMCC No. 24 of 2017 settled at an all-inclusive figure of Kshs. 1,100,000. 00. That in pursuance of the said compromise of both the appeal and the subordinate court case an appropriate consent letter dated 2nd February 2021 was addressed to the Manager Bank of India to uplift FDR No. 69293 for Kshs. 2,459,795. 00.

11. The deponent sates that on 3rd February 2021, he wrote a letter to the 1st Respondent herein enclosing the duly receipted consent letter to the bank of India dated 2nd February 2021, 2 cheques totaling Kshs. 1,100,000. 00 in favour of the 1st Respondent, and 2 consent letters to mark Voi PMCC No. 24 of 2017 and Voi High Court Civil Appeal No. 32 of 2019 as settled.

Further Response by Applicant

12. The Applicant herein, Tannen Gaceri, swore a Further Affidavit on 6th May 2021 and states that the averment by the 1st Respondent that she fully settled all the sums due and owing to her are false. That the 2nd Respondent has indicated that it paid Kshs. 913,210 in respect of PMCC No. 26 of 2017, Kshs. 1,100,000 in respect of PMCC No. 25 of 2017 and Kshs. 1,100,000 in respect of PMCC No. 24 of 2017, all totaling to Kshs. 3,113,210. That the 1st Respondent has annexed an exhibit purporting to discharge herself and the firm from any claim by the Applicant but the said discharge is clearly in the respect of SPMCC No. 26 of 2017.

13. The Applicant states that the 1st Respondent called her to her office and issued her with a cheque for Kshs. 408,240 simply explaining that it was part of the settlement in her case before asking her to sign a document to receiving the settlement which to date the 1st Respondent has never explained to the Applicant what the money was for, how she arrived at the amount in question and whether this was final settlement to her claims. That the Applicant was not furnished with any documents by the 1st Respondent concerning the said settlement. The Applicant states that while party to party costs were paid at Kshs. 131,200, they were never accounted to her and as such, the issue of all payments in regard to PMCC No. 26 of 2017 remain outstanding, pending a proper and full account, notwithstanding the improperly obtained discharge. That since the issuance of that cheque, she has not received any communication from the 1st Respondent.

14. The Applicant states that she has recently learnt through her advocates and the 2nd Respondent’s Affidavit that there were many consents entered into by the 1st Respondent and the 2nd Respondent concerning SPMCC No. 24 of 2017 and 25 of 2017 alongside High Court at Voi Civil Appeals No. 32 and 33 of 2019. That the 1st Respondent has not annexed any proof that she was discharged in respect to PMCC No. 24 of 2017 and 25 of 2017 which clearly means that the 1st Respondent did not settle the full amount belonging to the Applicant. That the statement by the 1st Respondent that PMCC No. 24 of 2017 and 25 of 2017 were settled at Kshs. 900,000 is utterly false as the 2nd Respondent has annexed exhibits marked SSG10 and SSG9 in their Replying Affidavits in respect to PMCC No. 25 of 2017 and 24 of 2017 which are consents entered into between the 1st and 2nd Respondents settling the matter and the consequent payment of Kshs. 1,100,00 for each of the two matters.

15. The Applicant states that she did not agree to pay the 1st Respondent Kshs. 200,000 for each file. The instruction note annexed by the 1st Respondent indicates an amendment written by a pen which provides that the agreed fees shall be one third of the costs. The Applicant has not signed against the amendment and the 1st Respondent has not demonstrated that she was aware of the same. That in any case and without prejudice to the foregoing, one third of the proceeds in PMCC No. 26 of 2017 is Kshs. 310,491, in PMCC No. 25 of 2017 is Kshs. 374,000 and PMCC No. 24 of 2017 is Kshs. 374,000. The Applicant states that she is therefore entitled to the remaining balance of Kshs. 2,054,719 after the fees as calculated above are deducted.

16. The Applicant states that the 1st Respondent is not only economical with the truth in regards to the settlement awarded but also refused to share any communication with the Applicant. That the advocate-client bill of costs annexed to the 1st Respondent’s Replying Affidavit is grossly erroneous and the same is dated 19th April 2021 and was filed on 21st April 2021 which is way after filing of the reference herein. That the same is an afterthought meant to limit the Applicant’s ability to recover the fruits of the judgment. The Applicant prays that the application herein be allowed with costs against the 1st Respondent.

Applicant’s Submissions

17. The Applicant in her submissions states that the issue of retainer came up before the taxing master who referred the matter to the judge for determination before he could delve into the taxation of the bill of costs. That the taxing officer acted correctly in the circumstances as the issue of retainer is essential to the whole taxing exercise as was ably held by Maina J. in Erickson Mogusu t/a N. E. Mogusu & Associates v Mash East Africa Limited [2017] eKLR where it was held, “The Taxing Officer has no jurisdiction to entertain a bill of costs where the retainer is disputed and she correctly referred the issue to this court.” The Applicant in submitting states that the procedure adopted by the taxing officer to adjourn the taxation until the issue of retainer is determined was duly confirmed by the High Court, Odunga J. in Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] eKLR where the court held, “However, there is no bar to the same being raised before the taxing master in which case the taxation may be adjourned pending the determination of the issue before a judge.” The Applicant therefore submits that this court has jurisdiction to delve into the issue of retainer before it.

18. According to the Applicant’s submissions, the general term of retainer was eloquently elaborated by the Court of Appeal in Omulele & Tollo Advocates v Mount Holdings Limited [2016] eKLR where it was held as follows: -

“…,‘retainer’ covers a broad spectrum. It encompasses the instructions given to an advocate as well as the fees payable thereunder. A retainer need not be written, it can be oral and can even be inferred from the conduct of the parties. However, if there is no evidence of retainer, except a statement from the advocate, which a client contradicts, the court will treat the advocate as having acted without authority from the client …

…

An agreement entered into pursuant to the above section is what can be termed as a ‘retainer agreement.’ As the section indicates, under such agreement, the parties ‘fix’ or put a cap on the advocate’s instruction fee, meaning that both parties are beholden to the amount so fixed. From the foregoing it should thus be clear that the presence of a retainer is what in turn gives rise to the retainer agreement. In other words, only when the engagement and the terms thereof have been agreed upon, can the same be reduced into writing. It also follows that for the retainer agreement to be valid and binding, the same must have been put in writing and signed by the client and or his agent.

…

…, where a client disowns an oral retainer or even the existence of a retainer relationship, it is for the advocate who claims under that retainer to prove to court that such a relationship indeed existed, otherwise the court will deem that he acted without instructions.”

19. Further, the Applicant states that it is clear from the foregoing that there is a difference between a retainer agreement and a retainer and that it is clear that where a retainer is denied by the client, the burden of proving the existence of retainer falls upon the advocate. The Applicant cited the case of Stephen Aluoch K’Opot t/a K’Opot & Company Advocates v Cornel Rasanga Amoth [2017] eKLR where it was held, “Where retainer is denied, the burden falls on the advocate to prove the retainer on the balance of probabilities.” The Applicant submits that notwithstanding instructions to the 1st Respondent, she did not inform the Applicant of the conclusion of the matters. She simply called the Applicant for a cheque of Kshs. 408,240, at a time when the 1st Respondent was acting in High Court at Voi Civil Appeals No. 32 and 33 of 2019 without the Applicant’s instructions. That the lack of instructions in writing is particularly glaring when it is noted that all engagements between the Applicant and the 1st Respondent are in writing. That a retainer agreement is an entire contract as was set out in Turner v Mitchell Solicitors [2011] QDC 61 and in Pius Kimaiyo Langat v Cooperative Bank of Kenya [2017] eKLR. That since the 1st Respondent was not instructed in the Voi Civil Appeal No. 32 of 2019 and Voi Civil Appeal No. 33 of 2019, they are not entitled to any fees from the Applicant. The Applicant therefore urged the court to grant the orders sought.

1st Respondent’s Submissions

20. The 1st Respondent in submitting stated that this court is not seized of the taxation matter in this miscellaneous cause wherefore it has no jurisdiction to deal with the same.

21. The Applicant states that subsequent to the delivery of the judgment, two appeal were lodged: Nos. 32 and 33 of 2019 which were settled amicably by the parties’ advocates and the Applicant was invited to attend her advocate’s chambers for payment of monies due to her, whereupon a disagreement on the advocates fees arose culminating to the filing of this application.

22. That the 1st Respondent who was representing the Applicant from the onset and to whom appeals Nos. 32 and 33 of 2019 Voi High Court, were served upon her pursuant to her initial instructions, she could not refuse to act or ignore the appeals given that it was incumbent upon her to protect the interest of the Applicant hence the consent for the deposit of the decretal funds in a joint account of the 1st Respondent and the 2nd Respondent pending the outcome of the appeals.

23. The 1st Respondent further submits that when the Applicant attended to the 1st Respondent’s chambers on 30th September 2019 and paid monies due to her on account of Voi PMCC No. 26 of 2018 and advised on the status of PMCC Nos. 24 and 25 of 2017 which had attracted appeal Nos. 32 and 33 of 2019, she did not withdraw her instructions from the 1st Respondent. The 1st Respondent states that the affidavit in support of the application herein sworn by the Applicant on 24th March 2021 speaks for itself that retainer or want thereof was never an issue, but the 1st Respondent’s taxable costs.

24. The 1st Respondent cited the case of Migos – Ogamba & Co Advocates v Kenindia Assurance Co. Ltd, High Court Misc. Application No. 108 of 2019 Kisii and Mulu & Company Advocates v Kaleve Musyoka, Misc. Application No. 13A of 2015, High Court Machakos.

Analysis and Determination

25. Having considered the application dated 24th March 2021 together with responses from the Respondents and accompanying submissions, this court establishes that the 1st Respondent admits that out of Kshs. 913, 210 which was paid to her as full and final settlement in Voi PMCC No. 26 of 2018, she remitted Kshs. 408, 240 to the Applicant.

26. It is admitted that the 1st Respondent represented the Applicant in the above suit and her fees was to be 1/3 exclusive of costs in each of the three cases namely Voi PMCC Nos. 26 of 2018, 24 and 25 of 2017.

27. The dispute is whether the 1st Respondent fully discharged her responsibility to the Applicant in regard to CMCC No. 26 of 2018 and also Voi CMCC No. 24 and 25 of 2017.

28. From the reading the application, the responses and the submissions, the 2nd Respondent and the Applicant are not agreeable as to client and advocate costs. Such costs can only be determined by the taxation of the bill of costs by the taxing master. In that regard, this court therefore orders as follows:

(i) In PMCC No. 24 of 2017, the decretal sum is Kshs. 1,100,000

1/3 × Kshs. 1,100,000 = Kshs. 366,667 (legal fees)

Decretal sum (1,100,000) less 1/3 legal fees (366,667) = Kshs. 733,333

The 1st Respondent is required to remit Kshs. 500,000 to the Applicant from the Kshs. 733,333 within 21 days.

The balance of Kshs. 233,333 to be deposited in a fixed deposit account in the names of the Applicant’s and the 1st Respondent’s advocates within 21 days to await taxation of advocate/client costs by the Deputy Registrar

(ii) In PMCC No. 25 of 2017, the decretal sum is Kshs. 1,100,000

1/3 × Kshs. 1,100,000 = Kshs. 366,667 (legal fees)

Decretal sum (1,100,000) less 1/3 legal fees (366,667) = Kshs. 733,333

The 1st Respondent is required to remit Kshs. 500,000 to the Applicant from the Kshs. 733,333 within 21 days.

The balance of Kshs. 233,333 to be deposited in a fixed deposit account in the names of the Applicant’s and the 1st Respondent’s advocates within 21 days to await taxation of advocate/client costs by the Deputy Registrar

(iii) In PMCC No. 26 of 2018, the decretal sum is Kshs. 913, 210

1/3 × Kshs. 913, 210 = Kshs. 304,403 (legal fees)

Decretal sum (913, 210) less 1/3 legal fees (304,403) = Kshs. 608,807

The 1st Respondent remitted Kshs. 408,240 to the Applicant from the Kshs. 608,807

The balance of Kshs. 200,567 to be deposited in a fixed deposit account in the names of the Applicant’s and the 1st Respondent’s advocates within 21 days to await taxation of advocate/client costs by the Deputy Registrar.

29. Each party will bear their own costs of the application.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 10TH DAY OF MARCH 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

IN THE PRESENCE OF: -

OGWEL- COURT ASSISTANT

MR. KINYANJUI ADVOCATE FOR APPLICANT

MR. MICHUKI ADVOCATE FOR RESPONDENTS

HON. LADY JUSTICE A. ONG’INJO

JUDGE

COURT: RULING TO BE TRANSMITTED TO VOI HIGH COURT & NOTICE TO BE ISSUED TO PARTIES BY DEPUTY REGISTRAR.

10. 3.2022