[2023] KEHC 25570 (KLR)

Yunus B Maimoon t/a Maimoon Medical Center v Vincent Mogaka t/a Mogaka Bwongki & Co. Advocates (Miscellaneous Application E067 of 2022) [2023] KEHC 25570 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25570 (KLR)

Republic of Kenya

In the High Court at Malindi

Miscellaneous Application E067 of 2022

SM Githinji, J

November 21, 2023

Between

Yunus B Maimoon t/a Maimoon Medical Center

Applicant

and

Vincent Mogaka t/a Mogaka Bwongki & Co. Advocates

Respondent

Ruling

1. The applicant filed the chamber summons application dated 27th October 2022 in which he is challenging the ruling of the Taxing Master on an advocate/client bill of costs lodged by the respondent.

2. The bill of costs is related to services rendered by the respondent in relation to Malindi CMCC No. 43 of 2022, Dr. Yunus Maimoon T/A Maimoon Medical Center v Ubada Hussain & Another. The application is expressed as lodged under section 1A, 1B, 3A of the Civil Procedure Act, order 50 rule 6 of the Civil Procedure Rules, 2010 and rule 11 (2) of the Advocates (Remuneration) Order, 2009. The Applicant seeks the following orders:1. Spent.2. That the ruling of the Hon. D. Wasike (DR) delivered on the 26th October 2022 on the taxation of the advocate/client bill of costs dated 19th September 2022, be set aside and vacated as relates to the specified items taxed.3. That this honourable court be pleased to issue a stay of execution of the ruling of the Hon. D. Wasike (DR) delivered on the 26th October 2022 pending the hearing and final determination of the application for reference.4. That this honourable court be pleased to refer the bill for taxation dated 8th September 2022 (sic) before a different taxing officer/deputy registrar.5. That this honourable court makes such further orders in the interest of justice as it may deem just and fit.6. That the costs of this application be provided for.

3. The application is founded on the grounds set out on the face of it and the affidavit in support sworn by the applicant on the even date. In the said grounds, the Applicant argues that the learned deputy registrar misdirected herself in law in taxing the bill at Kshs. 567,502/-. That she had no jurisdiction to entertain a bill arising from a matter filed in the chief magistrate’s court. The Applicant further deposed that there was material non-disclosure by the Respondent that he was paid for the services rendered.

4. Opposing the application, the Respondent filed a Replying Affidavit which he swore on 21st November 2022. He deposed that the issue of jurisdiction of the deputy registrar is misleading with the intention of belittling the office of the taxing officer. The Respondent stated that there was no proof of payment of his fees and added that the bill was in fact missing some crucial items like air tickets, transfer costs and accommodation. He further deposed that the Applicant had all the chances to participate in the proceedings before the taxing officer but he chose not to. That the taxing officer recorded her reasons for taxing the bill as she did, hence the present application should be dismissed with costs.

5. Following this court’s directions, the application was canvassed by way of written submissions. However, I note that only the Respondent complied with those directions. I have carefully considered the application, affidavits and submissions on record. The main issues for determination are: -i.Whether the Deputy Registrar had the requisite jurisdiction to tax the Bill of Costs as the matter relates to a matter in the Subordinate Court?ii.Whether the applicant has met the threshold for setting aside or variation of the ruling of the Taxing Master dated 26th October 2022.

Analysis and Determination Issue (i) 6. The Applicant averred that the Bill of Costs before the Taxing Officer arose from proceedings in Malindi Chief Magistrates Civil Case No. 43 of 2022. The Applicant sought legal services from the Respondent to institute the said suit until sometime in June 2022 when he (the Applicant) engaged the services of another advocate by filing a notice of change of advocates. That for the reason that the matter arose from the subordinate court, the high court deputy registrar had no jurisdiction to entertain the Bill.

7. The legal position is that costs in the subordinate court matters are assessed (not taxed) under schedule 7 of the Advocates (Remuneration) (Amendment) Order, 2014. It must however be distinguished that the present Bill of Costs is between an advocate and client for legal services rendered. In Tom Ojienda & Associates Advocates v County Government of Narok (Miscellaneous Application E608 of 2019) [2021] KEHC 452 (KLR) (Commercial and Tax) the High Court in determining whether a High Court Deputy Registrar had jurisdiction to tax an advocate-client bill of costs for a matter arising from the Supreme Court, reasoned as follows: -“The Advocate- Client Bill of Costs is considered a commercial contract between the parties; advocate and client(s) enter into an Agreement; for the advocate to offer legal services and the client (s) to pay for those services rendered by the Advocate and thus such a contract is enforced & taxed by Taxing Officers within the Commercial & Tax Division of the High Court.”

8. In the same breadth, I find that the deputy registrar was well within her jurisdiction to tax the advocate-client bill. In any event, the Applicant ought to have raised a preliminary objection before or during the taxation proceedings. It is unfortunate that he did not see the need to participate in those proceedings in the first place.

Issue (ii) 9. In challenging the decision of the Taxing Master, an Applicant should demonstrate that his case meets the principles set in jurisprudence for interference with the exercise of discretion by the Taxing Master. These principles were concisely enunciated in First American Bank of Kenya v Shah and Others [2002] E.A.L.R 64 at 69 in which Ringera J (as he then was) observed as follows: -“This court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that; it was based on an error of principle… it would be an error of principle to take into account irrelevant factors or to omit to take into account relevant factors… some of the relevant factors include the nature and importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of proceedings and any direction by the trial judge…not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him…”

10. The Applicant challenges the ruling of the taxing officer, firstly on the ground of material non-disclosure: That the Respondent was paid legal fees for the services rendered. This allegation was not substantiated with any evidence. It therefore remains just that, an allegation. Moreover, the Applicant did not demonstrate to this court how the taxing officer misdirected herself on points of law or how she failed to consider relevant issues and or took into consideration irrelevant issues in arriving at her decision. As I have already stated, the Applicant did not file any submissions to his application. Without this information, it is difficult for me to find any basis to fault the taxing master’s decision.

11. There is no dispute that the Respondent acted for the Applicant at some point. The Respondent drew his bill at Kshs. 2,312,280/-. The taxing master while citing the relevant provisions taxed the Bill at Kshs. 567, 502/-.

12. In the given circumstances, I find no merit in the application dated 27th October 2022. The same is therefore dismissed with costs to the respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 21st DAY OF NOVEMBER, 2023. .........................S.M. GITHINJIJUDGEIn the Presence of; -1. Mr Ombaga for the Respondent2. Mr Ahmednassir is for the Applicant (absent)