27.The Applicant urged that the Advocate’s Bill of Costs was time barred as time started running from 14th March, 2013 when judgement was delivered and the duration of 6 years lapsed. The decision in Akide & Co. Advocates V Kenindia Assurance Co. Ltd (2021) eKLR was relied upon on when time begins to run as was the decision in Maina Njuguna & Associates V Chege Gichuru t/a Exodus Transporters (2017) eKLR.
28.It was urged that the Taxing Officer erroneously placed reliance on the Further Affidavit and cheque “sneaked in” by the Advocate a few days to 5th April, 2022. That the Taxing Officer knew or ought to have known that the Further Affidavit was not properly on record as it had no receipt and thus discern the mischief and the alleged technical mishaps were suspicious and the affidavit had no effect as it was incurably defective and rendered the proceedings deficient and invalidated the record. The decision in SM V HGE (2019) eKLR was cited in support and the suit was incompetent. It was urged that since the affidavit was irregularly sneaked in to the court’s records, the Bill of Costs should be dismissed.
29.It was submitted that the Further Affidavit was not served upon the applicant and thus denied it the right to fair trial as it could not respond to the issues raised substantively and thus the process was deficient.
30.That the cheque attached related to another matter HCCC No. 412 of 2011, a fact the applicant would have brought to the court’s attention and the cheque was used to extend time in more than 10 Bills of Costs by the Respondent/Advocate.
31.That being a Judicial Review matter filed at the High Court, the Taxing Master had no jurisdiction to tax it and the suit was filed before operationalization of the Employment and Labour Relations Court.
32.On errors of principle, it was submitted that reliance on the Further Affidavit was as an error and a misdirection as it raises integrity issues to vitiate the taxation process.
33.As regards the award of Kshs.5,000,000/= as instruction fees, the decision in Nyangito & Co. Advocates V Doinyo Lessos Creameries Ltd (2014) eKLR was relied upon on the discretion to increase instruction fees. That the huge enhancement was abuse of discretion and thus an error of principle. The decision in Nolly K. Musango V Peter Odanga & another (2021) eKLR was also cited. That the ruling failed to particularize the justification for the enhancement.
34.Thirdly, the Taxing Officer overemphasized the nature and importance of the matter that gave rise to the Advocates Bill of Costs to justify the award of Kshs.5,000,000/= as held in Kipkorir Titoo & Kihara Advocates V Deposit Protection Fund (2005) that had other matters been considered, the outcome would have been different.
35.Finally, the Taxing Officer is faulted for having failed to take into account the sum of Kshs.300,000/= paid by the advocate was an error of principle as stated in B. Mbai & Associates Advocates V Clerk, Kiambu County Assembly & another. The decision in Spire Properties (K) Ltd t/a Diani Reef Beach Resort & SPA V Nyachoti & Co. Advocates (2018) eKLR was also relied upon to buttress the submission.
36.It was submitted that unions were public bodies and costs should not cripple them as it would impair the right of employees to representation.
37.It was further urged that the costs should be kept at a reasonable level.
38.Finally, it was speculatively argued that the respondent advocate had attempted to file other unidentified documents without leave before this court.
39.Nothing turns on this allegation. The court was urged to find the reference meritorious.
Issues and determination
48.Having considered the arguments by the parties, it is the finding of the court that the issues for determination are;i.Whether the Bills of Costs was statute barred andii.Whether the Taxing Officer committed errors of principle.
49.On the first issue, the applicant argued that the Taxing Officer had no jurisdiction to entertain the Bills of Costs as it was statute barred by virtue of Section 4(1) of the Limitation of Actions Act, Cap 22, Laws of Kenya as the prescribed duration of 6 years had lapsed.
50.As regards jurisdiction of the Taxing Officer, the sentiments of Ringera J. in Macharia & Co. Advocates V Magugu (2002) EA 428 are instructive that;
51.The Court of Appeal expressed similar sentiments in Wilfred N. Konosi t/a Konosi & Co. Advocates V Fiamco Ltd (2017) eKLR.
52.Needless to emphasize, this issue was raised before the Taxing Officer who found that she had jurisdiction by relying on Section 23(1) of the Limitation of Actions Act on accrual of fresh right of action by acknowledgement or part payment which the Applicant faulted on the ground that the Further Affidavit relied upon by the Taxing Officer had been sneaked into the court record, an allegation the Respondent vehemently denied but admitted that it was filed physically due to technical challenges in the office, a common occurrence in the era of e-filing and virtual hearing. According to the applicant, the affidavit was neither filed nor paid for or served upon the applicant and thus could not respond to its contents. The Respondent countered the argument by stating that the applicant did not deny its contents or the evidence of payment attached. The only contest is the matter in respect of which the sum of Kshs.300,000/= was paid. The letter dated 30th November, 2020 stated that it was for HCCC No. 412 of 2011 and there is no documentary evidence to the contrary. This appear to have been the last payment the applicant made before the Bill of Costs was filed.
53.Although the applicant did not deny that it owed the Respondent monies in respect of the services rendered which it had not faulted in any way nor had their relationship been formally terminated even after the judgement. This is a tacit admission of the amount outstanding.
54.Although it is unclear as to how the applicant was to liquidate their counsel’s fees for the many matters involved, it is evident that the duration of payment or interval was not fixed and the applicant does not appear to have been consistent in meeting its obligations. Otherwise, that matter ought to have been concluded several years ago.
55.The learned Taxing Officer was of the view that Section 23(3) of the Limitation of Actions Act gave a party accrual right of action if the debt was acknowledged or the last payment. The Taxing Officer also relied on Section 39(ii)(b) of the Act that the applicant could not plead Limitation as it was estopped by reason of its promise to pay the Respondent/Advocate his fees when it sought his services, a promise the Respondent relied upon to his detriment and the applicant was therefore estopped.
56.Under Section 39(1)(b) of the Act, estoppel includes the equitable doctrine of promissory estoppel, a concept eloquently explained by Denning L.J. in Combe V Combe (1951) 2 KB. 15 where the judge stated as follows;
57.The doctrine or principle of equitable or promissory estoppel is a modification of the common law rule of consideration.
58.This, in the court’s view is the more persuasive argument in this case since the doctrine of promissory estoppel is based on principle of fairness in enforcement of contracts where a party has made a representation to another intended to affect their relationship and the representee has relied on it to its detriment. It would be unfair for the representor to act as if there was no promise.
59.The Applicant cannot deny that it made a promise or representation to the Respondent/Advocate that it would pay him for the services rendered and the Respondent acted accordingly and had to await periodic or occasional payments by the applicant. The applicant did not furnish evidence or proof that under the engagement, it would pay and actually paid the Respondent’s legal fees either before, during or on the date of Judgement. At any rate, the services the Respondent rendered were not gratuitous. The Applicant must have promised to pay the Respondent. The applicant is estopped from pleading Limitation of time under the provisions of Section 39(1)(b) and (2) of the Limitation of Actions Act.
60.The court is in agreement with the finding of the Taxing Officer that the Bill of Costs was not statute barred and therefore had jurisdiction to determine it. It is true that time generally begin running from the date of judgement as submitted by the applicant. However, the applicant did not explain the details of the engagement and in particular the time when legal fees were payable to the Respondent/Advocate and tendered no evidence of payment. The court is unconvinced that the parties were not communicating on and off on the amount due to the Respondent/Advocate.
61.However, the foregoing notwithstanding, counsel for the applicant raised a serious issue that the Taxing Officer relied on the Further Affidavit dated 4th April, 2022 which was neither paid for nor served upon the applicant. Relatedly, the Respondent/Advocate had attached a copy of a cheque dated 24th November, 2020, which the Taxing Officer relied upon so as to find that the Bill of Cost was not statute barred. Similarly, that the Respondent/Advocate tactfully used the same cheque to extend time for all the Bills of Cost before the court.
62.The applicant’s counsel faulted the Further Affidavit on the premise that it was properly on record as it had neither been filed nor paid for by the Respondent, an argument the Respondent did not controvert by cogent evidence as the Affidavit was placed on record the day before the scheduled ruling date on 5th April, 2022.
63.Counsel wondered how the Respondent had the Further Affidavit placed on the court record yet he had filed all the other documents through the e-filing.
64.Although the Respondent argued that the document was filed manually owing to technical challenges, he did not avail evidence of payment and service to the applicant since he was introducing new evidence that required rebuttal by the applicant. Service was mandatory as its absence denied the applicant the right to a fair hearing as submitted by counsel of the applicant. Similarly, the Respondent/Advocate had no leave to file the Further Affidavit.
65.The High Court decision in SM V HGE (2019) eKLR is highly persuasive as regards documents that are not properly on record in proceedings.
66.Court records reveal that on 8th March, 2022, the matter came up before the Deputy Registrar for confirmation of filing of submissions and a ruling date.
67.The Respondent/Advocate informed the court that the applicant had filed submissions and served and prayed for a ruling date which the Deputy Registrar gave as 12th April, 2022. The Respondent also prayed that the directions apply to 176, 211, 207, 2008, 210 of 2022. Applicant’s counsel was absent.
68.An entry on record under the heading In Chambers dated 6th April, 2022 states as follows “Parent file not traced. Parties to avail documents.” It is to the court unclear what documents the parties were to avail and when.
69.On 12th April, 2022, both parties were represented and the Deputy Registrar directed the parties to avail copies of documents by 19th April, 2022 and the Ruling date was pushed to 31st May, 2022 on which date it was not ready and was slated for 7th June, 2022 and was eventually delivered on 14th June, 2022.
70.The learned Deputy Registrar found the Bill of Costs not statute barred because of the payment by cheque dated 24th November, 2020 as part payment which gave fresh accrual to the right of action under Section 23(3) of the Limitation of Actions Act absent which may have held otherwise.
71.Granted that a ruling was already slated for 12th April, 2022, it would appear to follow that Further Affidavit was presented to court after filing of the submissions and probably on 4th April, 2022 on the date it was sworn.
72.The applicant is challenging the substratum of the finding, the Further Affidavit and the copy of cheque attached thereto for want of leave and filing through the Registry and service. The original copy of the Further Affidavit dated 4th April, 2022 has no acknowledgement by anyone or Registry stamp. In other words, it lacks authentication by the Registry.
73.Needless to emphasize, documents presented to court physically must be presented at the Registry for authentication and placement in the relevant file. The Registry is the custodian of court files and placement of documents therein. Without cogent evidence that the Further Affidavit was delivered to the Registry with leave of the court and acknowledged and subsequently served upon the applicant’s counsel, the court is left with no option but agree with the applicant’s counsel’s submission that the Further Affidavit was presented to the court out of time, was neither filed nor paid for and was not served and reliance on it by the Taxing Officer unfairly prejudiced the applicant’s right to fair trial guaranteed by Article 50 of the Constitution of Kenya, 2010. Similarly, the Respondent did not seek the Deputy Registrar’s leave to regularise the Further Affidavit as emphasized by Mativo J. in Mombasa Cement Ltd V Speaker National Assembly & another (2018) eKLR cited by the Applicant’s Counsel.
74.Puzzlingly, the parties could not agree on the matter in respect of cheque No. 061025 issued by the applicant.
75.In the end, having found that the Further Affidavit dated 4th April, 2022 was not properly on record and was not served upon the applicant, the same should have been struck out by the Deputy Registrar and ought not to have been relied upon in the determination of the Bill of Costs.
76.Regrettably, the absence of the original files made it exceedingly difficult for the court to appreciate the nature of the matter involved. The history of the relationship between the parties was either by design or mistakenly not found necessary by the parties, yet the court required it for the essential background of the chamber summons.
77.For the foregoing reasons, the court is satisfied that Section 23(3) of the Limitation of Action Act could not ameliorate the Respondent’s case.
78.As regards errors of principle, the starting point are the sentiments of Mutungi J. in Metro Petroleum Ltd V Onyango Oloo & Co. Advocates (Supra), where the judge exemplified the concept of error of principle as follows;
79.In Wycliffe Chitayi Mohalya V Dorothy Awiti Omboto t/a Dao Associates & another Supra) cited by the Respondent Advocate, the court stated as follows;
80.Similarly, in Alice Yano t/a Yano & Co. Advocates V Rebecca Nadupoi Supeyo & another (2021) eKLR, Mwita J. stated as follows;
81.According to Spry JA in Premchand Raichand Ltd & another V Quarry Services East Africa Ltd & another (1972) E.A 162, the court will only interfere if it is of the view that amount awarded is high or low as to amount to an injustice to one party or the other.
82.The court is guided by these sentiments.
83.The applicant identified various errors of principle such as reliance on the Further Affidavit by the Taxing Officer, increase of instruction fee from Kshs.28,000/= to Kshs.5,000,000/= under the Advocates Remuneration Order, 2009, which was 179 times, overemphasizing the nature and importance of the matter that gave rise to the Bill of Costs. Strangely, the applicant faulted the Taxing Officer for failure to take into account the sum of Kshs.300,000/= paid in November 2021, yet it contested the Further Affidavit which introduced the cheque.
84.As regards the Further Affidavit as explained elsewhere in this ruling, the court is satisfied that the Taxing Officer committed an error of principle. Although the Affidavit was in the court file, it was not properly on record for purposes of preparation of the ruling as it had neither been filed or paid for nor served on the applicant’s counsel for a response and ought not to have been relied upon.
85.As regards the alleged unjustified enhancement of instruction fees, the first issue to dispose of is the Remuneration Order applicable. The applicant argued that the Advocates Remuneration Order, 2009 was the applicable framework and the court is of a similar view on account that the suit in question was filed and concluded during the currency of the Advocate’s Remuneration Order, 2009.
86.The alleged actions taken by the Respondent/advocate after 2013 and 2014 when the subsequent remuneration order was promulgated were not particularized.
87.The ruling dated 14th June, 2022 made no direct mention of the Advocates Remuneration Order, 2009 or 2014. It is unclear which of the remuneration orders was relied upon in the computation of figures cited by the applicant.
88.The Respondent appears to suggest that the Taxing Officer relied on the Advocates Remuneration Order, 2014.
89.From the foregoing, it is the finding of the court that the Advocates Remuneration Order, 2009 was the operative legal framework.
90.As regards the instruction fee, the applicant urged that it was excessive and inordinately high and cited decisions where the awards were held to be excessive. In Nolly K. Musango V Peter Odanga & another (Supra), for instance, the enhancement of fees from Kshs.6,300/= to Kshs.200,000/= was held to be excessive as was a 10 fold increase in Nyagito & Co. Advocates V Doinyo Lessos (Supra).
91.The Taxing Officer was also faulted for not particularizing the pertinent details of complexity or novelty, in other words justify the award.
92.Part II of Schedule V of the Advocates Remuneration Order, 2009 itemised the factors to be considered in assessing the instruction fees. These included:a.the care and labour required.b.number and length of the papers to be perused.c.nature or importance of the matter.d.amount or value of the subject matter involved.e.interest of the parties.f.complexity of the matter.g.All other circumstances of the case.
93.These factors were also emphasized in Joreth Ltd V Kigano & another (Supra) among other decisions.
94.The Taxing Officer relied on time, skill and research, importance of the matter, negotiations with the unions and the decision in Republic V University of Nairobi & another where Nyamweya J. had affirmed the Taxing Officers award of Kshs.4,000,000/=, but as submitted by the applicant, the amount was reduced to Kshs.2,000,000/= by the Court of Appeal in its judgement delivered on 4th February, 2022 as the learned judges considered the award to be “on the higher side.”
95.In the instant case, the Taxing Officer awarded the amount prayed for by the Respondent/Advocate of Kshs.5,000,000/=.
96.Similarly, since the award relied upon was subsequently reduced by a Superior Court, the award is unsustainable and justifies the court’s intervention as excessive and thus an error of principle as enunciated in many decisions.
97.It is the view of this court that the Taxing Officer ought to have been more detailed in upholding this prayer in the context of the factors enumerated in Part II of Schedule V to the Advocates Remuneration Orders, 2009 so as to justify the award.
98.This reasoning is consistent with the applicant’s submission and case law that costs are intended to ensure reasonable compensation and access to justice by all.
99.Closely related to the foregoing is the applicant’s submission that the Taxing Officer overemphasized the nature and importance of the suit that gave rise to the Bill of Costs. However, whereas the Taxing Officer made reference to the importance of the case to the parties, she also addressed the issue of attraction of recruits to the profession as emphasized in the Premchand Raichand Ltd case (Supra). She also made reference to time, research and skill deployed by counsel as emphasized in Republic V Ministry of Agriculture & 2 others Ex parte Muchiri Njuguna & others (Supra). Finally, since the parent file could not be traced, the Taxing Officer’s leeway was arguably circumscribed.
100.The court is unpersuaded that the Taxing Officer paid undue attention to the importance of the matter at the expense of other factors.
101.For the above stated reasons, it is the finding of the court that the Taxing Officer committed no error of principle with regard to the alleged overemphasis so as to implicate the Court of Appeal holding in Titoo & Kihara Advocates V Deposit Protection Fund (Supra).
102.Finally, on this costs, it is essential to emphasize that as explained in the Premchand V Raichand Ltd Case,
103.It is common ground that the sum of Kshs.300,000/= was paid via cheque dated 24th November, 2021 and although the applicant submitted that the Affidavit to which it was attached was unprocedurally on record, a submission the court is in agreement with, it could not deny the fact and relied on it to urge the court to find and hold an error of principle had been committed.
104.Guided by the contents of Part II of Schedule V to the Advocate Remuneration Order, 2009 and the holdings in B. Mbai & Associates Advocates V Clerk, Kiambu County Assembly & another (Supra) and Spire Properties Ltd V Nyachoti & Co. Advocates (Supra), the court is satisfied that applicant has not demonstrated that the Taxing Officer committed an error of principle by not taking into consideration the sum of Kshs.300,000/= as part of circumstances of the case.
105.Flowing from the foregoing, it is the finding of the court that the applicant has made a sustainable case for the court’s interference with the taxation of the Bill of Costs.
106.Consequently, the decision of the Taxing Officer in the ruling delivered on 14th June, 2022 as regards the assessment of instruction fees is hereby set aside and it ordered that;1.The Bill of Costs be referred to another Taxing Officer for fresh taxation of the instruction fees.2.Each party shall bear its own costs of the Applicant’s Chamber Summons dated 22nd June, 2022.