[2023] KEHC 18862 (KLR)

Titus Makhanu & Associates Advocates v Alicate Holdings Limited (Miscellaneous Civil Application E145 of 2021) [2023] KEHC 18862 (KLR) (Commercial and Tax) (23 June 2023) (Ruling)

Neutral citation: [2023] KEHC 18862 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Miscellaneous Civil Application E145 of 2021

FG Mugambi, J

June 23, 2023

Between

Titus Makhanu & Associates Advocates

Applicant

and

Alicate Holdings Limited

Respondent

Ruling

Brief Facts 1. The taxation reference before the court is one dated 10th January 2023. It is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Section 51(2) of the Advocates Act, Cap 16 Laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Rule 7 of the Advocates Remuneration Order, 2014.

2. The application seeks the following orders;i.That this Honourable court be pleased to enter judgment in favour of the advocate/applicant as against the client/respondent for the sum of Kshs 26,449,774. 64/= being costs taxed by the taxing master.ii.That the taxed costs and /or the said judgment do attract interest at 14% p.a. from the date of filing the bill of costs being 22nd February 2021, until payment is made in full

3. The applicant states that the bill of costs dated 22nd February 2021 was filed on 18th November 2021 and the taxing master issued a ruling taxing the bill at 1,524,416,77. The applicant, being dissatisfied with the ruling filed a reference dated 6th December 2021 and the Court delivered a ruling upholding the applicant’s reference and ordered that the bill of costs be taxed a fresh and that the applicant’s instruction fees be based on the value of the subject matter, beings Khs 745,456,000/=. Following these orders, the taxing master taxed the applicant’s bill of costs and issued a Certificate of Taxation for the sum of Kshs 26,449,774. 64, dated 9th January 2023.

4. The applicant states that the Certificate of Taxation has never been varied or set aside and as such the applicant is entitled to charge interest at the rate of 14% per annum from the date of its filing, based on the fact that the bill of costs was served on the respondent on time and the same is yet to be settled. The application was brought so as to enable the applicant extract a decree and pursue the decretal amount.

5. The application is supported by the grounds contained therein and the affidavit sworn by Titus Makhanu on 10th January 2023.

6. The application was opposed. The respondent filed its replying affidavit dated 16th January 2023 sworn by Abdulali KurjI. The averments by the applicant with respect to the chronology of events are uncontroverted save for the fact that the respondent being dissatisfied by the decision of the taxing master dated 9th January 2023 had served a notice dated 12th January 2023 and also filed a reference against the ruling on taxation. The respondent argued that the Certificate of Taxation as filed by the applicant was therefore not final as the same had been challenged.

7. By way of rejoinder, through a supplementary affidavit sworn by Titus Makhanu dated 25th January 2023, the applicant acknowledges that the respondent had filed a reference but avers that the same had very little chance of success. The applicant states that the reference is res judicata as it raises similar issues to those raised in the previous reference dated 30th November 2021. The subsequent taxing officer had followed the orders of the court of 22nd August 2022 and therefore the respondent ought to have appealed against that ruling.

8. The respondent, by way of a supplementary affidavit sworn by Abdulali Kurji dated 30th January 2023 avers that subsequent to the orders of Mjanja J, the bill of costs was to be taxed a fresh. In doing so the respondent takes issue with the taxing master for failing to consider and interrogate the issue of Kshs 1,100,000/= payment made to the applicant by the respondent. This amount was not accounted for by the applicant in the bill of costs. The respondent argues that the issue of res judicata does not arise as the Hon. Judge ordered that the bill be taxed a fresh.

9. The applicant, vide a further affidavit dated 1st February 2023 sworn by Titus Makhanu avers that while the bill of costs was ordered to be taxed a fresh, the same was meant to proceed under the struct guidelines issued by the Hon Justice Majanja. The applicant argued that the ruling of Justice Majanja considered the 1,100,000/= and the fact that the only evidence before the court was the bank statement.

10. Both the applicant and respondent filed their respective submissions dated 20th March and 14th March 2023 respectively. Pursuant to the directions given to the parties, I will consider this application first as it has a bearing on the reference filed by the respondents.

Analysis 11. I have considered the rival pleadings, the written submissions and authorities presented by the parties in support of their cases. Before delving into the substance of the present application, I note that this is a second reference to this court and as such, it falls on this court to first of all ensure that the matter is not res judicata, as pleaded by the applicant.

12. While I note that paragraph 11 of the Advocates Remuneration Order allows a reference to be filed objecting to the decision of the Taxing Master, the same must be in tandem with the provisions of section 6 of the Civil Procedure Act.

13. I have perused the ruling by the taxing officer dated 18th November 2021. The said ruling considered the different headings in the bill of costs including instruction fees, getting up fees, perusal, service, attendance and the alleged payment of Kshs. 1,100,00/=. I have also perused the decision on the reference before Majanja, J dated 22nd August 2022. The decision was with respect to a reference filed by the advocate on 6th December 2021 and the client on 30th November 2021. The Learned Judge addressed himself extensively on the claim of the Kshs. 1,100,000/=. The Judge further gave directions on the basis on which the taxing officer would proceed in taxing the bill a fresh.

14. The applicant prays for interest at 14%. The award of interest rate is at the discretion of the court. I note that the same was not pleaded in the reference dated 6th December 2021 and was also not granted. Having determined that the issue before me is res judicata, this is a question that should have been brought before the Learned Judge in the reference but was not. It is therefore not open to this court for determination.

Determination and final orders 15. In the circumstances and for the reasons that I have stated, the application dated 10th January 2023 succeeds in part. Judgmentis entered in favour of the advocate/applicant as against the client/respondent for the sum of Kshs 26,449,774. 64/= being costs taxed by the taxing master, together with costs of this application. I decline to award any interest on the taxed amount.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 23RD DAY OF JUNE 2023F. MUGAMBIJUDGECourt Assistant: Ms. Lucy Wandiri.