1.Before the court for consideration are two applications. The first one is the Client’s Reference brought by way of a Chamber Summons dated 22nd November, 2021 while the second is the Advocates Notice of Motion dated 25th November, 2021. The two applications arise from the Deputy Registrar’s ruling dated 8th November, 2021 in respect to the Advocate-Client Bill of Costs dated 16th September, 2020.
The Client’s Reference: Ist Application.
2.The Client’s Reference was brought under Rule 11(2) of the Advocates Remuneration Order 2014 and Section 3A Civil Procedure Act. It seeks the following orders That;1.Spent.2.The decision of the taxing master made on 8th November 2021 taxing the bill of costs dated 16th September 2020 in the sum of Kshs. 5,788,537.40 be set aside.3.This Honorable court be pleased to reassess the fees in respect to the Advocates-Client Bill of costs dated 16th September 2020 taxed at Kshs. 5,788,537.40 on 8th November 2021 and make a finding on the same.4.In the alternative and without prejudice to the foregoing, the costs be taxed afresh before a different taxing master.5.The costs of this application be awarded to the applicant.
3.The application is supported by the Client’s Affidavit and based on the grounds that the Bill arose from the proceedings in Nairobi HCCC No. 60 of 2016: Patrick Sagwa Kisia t/a Steg Consultants v Kay Construction Company Limited where the client had instructed the Advocates to represent him. In the subject suit, the Client claimed a sum of Kshs. 142,234,965.60 from the defendant together with interest and costs. That the taxing master committed a grave error of principle by using the said amount as the value of the subject matter for purposes of calculating instruction fees in the Bill, yet the said amount is just but a moving target which cannot be ascertained until the suit is concluded. That the taxing master committed an error of principle by failing to take into account the relevant factors to be considered in assessing instruction fees. That the taxed amount of Kshs. 5,788,537.00 awarded by the taxing master is unreasonably high considering that there were no evidence demonstrating the complexity of the matter or the care and labor involved.
4.The Advocates responded to this application vide Grounds of Opposition dated 3rd February 2022 and Replying Affidavit sworn by Eugene Lubale Lubulellah on 23rd March, 2022, stating that the Client had failed to lay any legal or factual basis for the orders sought as he had not demonstrated that either the decision was based on an error of principle, or the fees awarded was manifestly excessive.
5.Further,it was deponed that the taxing officer took into consideration only relevant factors and legal principles in taxing the bill of costs; That the instruction fees was based on the monetary value of the subject matter of the suit which was aptly disclosed in the Plaint; That the Taxing Master in fact awarded the Advocate less than the basic allowable instruction fees as would have been awarded if based on the monetary sums claimed and pleaded by the Client; That the Client failed to await for the reasons for the taxing master's exercise of discretion in arriving at the instruction fees, before filing the Reference. It is the Advocates contention that the full instruction fees to prosecute or defend a suit are earned the moment a Plaint or Defence is filed and the subsequent progress of the matter is irrelevant to that item of fees, and that any errors by the taxing officer as may be found, did not materially affect the assessment.
6.The Advocates further aver that the matter was extremely complex and entailed the perusal of copious documents coupled with the preparation of the necessary pleadings, correspondences, court and registry attendances, all being time-consuming exercises. Lastly, the Advocates state that the judgment was delivered in the subject suit on 25th March 2022, and the client was awarded Kshs. 142,234,965.60 hence the Client's reference is unmerited and should be dismissed.
The Advocates Application
7.On the other hand, the Advocates Notice of Motion was brought under Section 51 of the Advocates Act; Rule 13A of the Advocates Remuneration Rules; Section 3A and 63(e) of the Civil Procedure Act and Order 41 Rule 1 of the Civil Procedure Rules. The Advocates seek the following orders: -1.That the Court be pleased to enter Judgment against the Respondent on the amount of Kshs. 5,788,537.00/- certified on the Certificate of Taxation herein dated 17th November, 2021, together with interest at the rate of 14% per annum from 24th August 2020 until payment in full.2.That a Decree issues in respect of the sum of Kshs. 5,788,537.00/- certified on the Certificate of Taxation dated 17th November, 2021, together with interest at the rate of 14% per annum from the 24th August 2020 until payment in full, and that the Applicant be at liberty to execute for recovery of same in such manner as a Decree of this Honourable Court.3.That the costs of this application be provided for.
8.The application is supported by the Affidavit of Eugene Lubale Lubulellah and premised upon the grounds that the Bill was taxed and a Certificate of Taxation issued; that the Advocates wish to proceed and realize the costs taxed by way of execution hence judgment and Decree are required therefrom; and that it is just and fair that the orders sought be granted.
9.In opposition, the Client filed a Replying Affidavit sworn on 17th December, 2021. He averred that by filing the said above Reference application, the Certificate of Taxation automatically stands as challenged and cannot be enforced until the Reference has been heard and determined.
Analysis and Determination
10.The Court has carefully analyzed both applications, the Affidavits, the parties’ rival arguments and authorities cited. The issues that present themselves for determination, in my view are:1.Whether there is a competent reference before this court.2.Whether the Advocate’s application is merited.3.Who should bear the costs of the applications.
1. Whether there is a competent reference before this court?
11.The Advocates contended that this court has no jurisdiction to entertain the instant reference as the Client failed to lodge a Notice of Objection to Taxation within 14 days of the Taxing Master's decision contrary to the mandatory requirements of Rule 11(1) of the Advocates Remuneration Order. The Advocates asserted that compliance with this requirement is not a mere technicality. In the Advocates view, the Client’s conduct of circumventing the process by filing a substantive Reference without first taking the essential step of lodging a Notice of Objection to Taxation is akin to a litigant proceeding to file a Record of Appeal before filing a Notice of Appeal which is the instrument that invokes the appellate jurisdiction of the court.
13.On the other hand, the Client submitted that the provisions of Rule 11(1) of the Advocates Remuneration Order are not couched in mandatory terms. He submitted that the notice of objection envisaged under Rule 11 can take varied forms as long as the intention to object is well spelt out. In his view therefore, the jurisdiction of this honourable court has been correctly invoked by filing a valid and proper reference.
14.The procedure for challenging the results of a taxation is provided under Rule 11 of the Advocates Remuneration Order which stipulates as follows: -
17.From the above authorities, it is evident that the notice of objection required to be given to the Taxing Officer is not just a mere technicality but a mandatory/necessary step in challenging the decision of a taxing officer. In the premises, I hold and find without a doubt that the Client did not properly invoke this Court’s jurisdiction to address or determine the issues raised in the Reference filed herein. The Reference is therefore incompetent, incurably defective and a non-starter. For that reason, the court will not venture into the merits of the Reference as filed. It is hereby struck out.
2. Whether the Advocate’s application is merited.
18.Having found that there is no competent Reference filed by the Client, it follows that there is no ground for setting aside or altering the decision of the Taxing Officer dated 8th November 2021. Section 51(2) of the Advocates Act which gives this court the mandate to enter judgment for the taxed costs provides:
20.Given that the Certificate of Taxation dated 17th November, 2021 has not been set aside by this court, the court hereby enters judgment in favour of the Advocates as against the Client for the sum of Kshs. 5,788,537.40.
21.As regards interest on the taxed costs, the Advocate submitted that the same should be awarded at the rate of 14% per annum from 30th September, 2020. Rule 7 of the Advocates Remuneration Order stipulates as follows regarding the interest chargeable:
22.According to the Affidavit of Service on record, the Advocates-Client Bill of Costs dated 16th September, 2020 was served on the Client on 22nd September, 2020. The one month envisaged in Rule 7 of the Advocates Remuneration Order lapsed on 22nd October, 2020.Interest will therefore accrue on the certified costs from 22nd October, 2020.
3. Who should bear the costs of the applications?
23.As regards costs, this court is guided by the well settled principle under Section 27 of the Civil Procedure Act that costs follow the event, unless there are special circumstances to persuade the court to depart from the said principle. None has been demonstrated. In the premises, the Advocates being the successful party is hereby awarded costs of both the Reference dated 22nd November, 2021 and the application dated 25th November, 2021.Orders accordingly.