RULING
1. This Ruling is in respect of three applications namely;
(i) The Respondent’s Chamber Summons application dated 3rd September 2024 (the Reference Application) supported by the Respondent’s Supporting Affidavit of Yvonne Masinde sworn on 3rd September 2024.
(ii) The Respondent’s Application dated 24th October 2024 (the Extension Application) supported by the affidavit of Yvonne Masinde sworn on the same date.
(iii) Finally, the Applicant’s Notice of Motion application dated 3rd October 2024 (the Application for Entry of Judgment) supported by the affidavit of Dr. Robert Owino sworn on the same date.
Respondent’s Chamber Summons application dated 3rd September 2024 (the Reference Application)
2. The Respondent's Chamber Summons application dated 3rd September 2024 (hereinafter referred to as "the Reference Application") brought under Rule 11 of the Advocates (Remuneration) Order sought, inter alia, the following orders:
(a) This application be certified urgent, and service thereof be dispensed with in the first instance and prayer 2 be granted ex parte.
(b) Pending the hearing and determination of this application, the execution of the Certificate of Costs issued on 15th August 2024 in respect of the Applicant’s bill of costs dated 12th February 2024 be stayed.
(c) The Ruling dated and delivered on 6th August 2024 on the taxation of the Applicant’s bill of costs dated 12th February 2024 be set aside.
(d) The Applicant’s bill of costs dated 12th February 2024 be remitted for taxation afresh.
(e) The costs of this application be provided for.
3. The Reference Application was premised on the grounds that:
(a) The Applicant filed the bill of costs dated 12th February 2024 in which its costs had been drawn at Kshs.6,040,021.67. The bill of costs was initially fixed for taxation on 16th April 2024.
(b) The Applicant sent notice of the taxation to the Respondent’s officers by email sent on 12th March 2024. At the time the email was sent, one of the officers of the Respondent had left the Respondent’s employ and there was an issue affecting the Respondent’s email system which caused the said email to be inadvertently missed.
(c) The bill of costs was subsequently rescheduled to 8th July 2024 when the Deputy Registrar fixed it for ruling on 6th August 2024. The Applicant did not issue any further notices of these subsequent dates to the Respondent.
(d) The Respondent therefore did not have an opportunity to participate in the taxation proceedings and submit a response to the Applicant’s bill of costs.
(e) The Deputy Registrar delivered a ruling on 6th August 2024 where the Applicant’s bill was taxed at Kshs.5,987,321 with only Kshs.52,700.67 was taxed off. A Certificate of Costs was issued on 15th August 2024 which the Applicant has served on the Respondent and demanded settlement of the taxed costs as well as value added tax bring the total amount to Kshs.6,945,292.36.
(f) There is an error in principle in taxation of the Applicant’s bill of costs as the Deputy Registrar applied Schedule 6 (b) of the Advocates (Remuneration) Order without taking into account Schedule 6 (e) noting that the underlying instructions involved bankruptcy proceedings against a debtor of the Respondent.
(g) There is an impending risk of execution by the Applicant against the Respondent for a significant amount of Kshs.6,945,292.36 noting that it is a deposit taking financial institution that will be required to pay a significant amount of money that will be extremely prejudicial to its operations. On the other hand, no prejudice will be occasioned to the Applicant if the orders sought herein are granted.
(h) It is fair and just that the bill of costs be remitted for re-taxation and the Respondent be given a proper opportunity to respond to the bill of costs.
4. The Reference Application was supported by the affidavit of Yvone Masinde, the Company Secretary and Head of Legal of the Respondent, that:
(a) The Applicant filed the bill of costs dated 12th February 2024 in which its costs had been drawn at Kshs.6,040,021.67. The bill of costs was initially fixed for taxation on 16th April 2024.
(b) The Applicant sent notice of the taxation to the Respondent’s officers by email sent on 12th March 2024. At the time the email was sent, one of the officers of the Respondent had left the Respondent’s service and the server was an issue affecting the Respondent’s email system which caused the said email to be inadvertently missed. A copy of the Applicant’s affidavit of service sworn on 12th March 2024 with the said email annexed is at pages 1 to 4 of “YM-1”.
(c) The bill of costs was subsequently rescheduled to 8th July 2024 when the Deputy Registrar fixed it for ruling on 6th August 2024. The Applicant did not issue any further notices of these subsequent dates to the Respondent. The Respondent therefore did not have an opportunity to participate in the taxation proceedings and submit a response to the Applicant’s bill of costs.
(d) The Deputy Registrar delivered a ruling on 6th August 2024 where the Applicant’s bill was taxed at Kshs.5,987,321 with only Kshs.52,700.67 was taxed off. A Certificate of Costs was issued on 15th August 2024 which the Applicant has served on the Respondent and demanded settlement of the taxed costs as well as value added tax bring the total amount to Kshs.6,945,292.36.
(e) There was an error in principle in taxation of the Applicant’s bill of costs as the Deputy Registrar applied Schedule 6 (b) of the Advocates (Remuneration) Order without taking into account Schedule 6 (e) noting that the underlying instructions involved bankruptcy proceedings against a debtor of the Respondent.
(f) There was an impending risk of execution by the Applicant against the Respondent for a significant amount of Kshs.6,945,292.36 noting that it is a cost arising under judicial instruction that will be required to pay a significant amount of money that will be extremely prejudicial to its operations. On the other hand, no prejudice will be occasioned to the Applicant if the orders sought herein are granted.
(g) It was fair and just that the bill of costs be remitted for re-taxation and the Respondent be given a proper opportunity to be heard.
5. This Application was opposed through the Replying Affidavit of Dr. Robert Omondi Owino, the Managing Partner of the Advocate/Applicant herein, sworn on the 30th day of September 2024. He deponed that the Certificate of Costs was incapable of execution, and the Court could not stay it as sought. The Advocates Remuneration Order did not contemplate the stay of such a Certificate. Additionally, the Respondent/Client’s application, as framed and presented to the Court, was utterly incompetent. It did not disclose any valid grounds for setting aside the taxation and award made on 6th August 2024. Applicant also averred that the Respondent/Client had, since April 2021, refused to pay fees and refund disbursements, including charges for filing the suit and advertising the Petition in the newspapers and Kenya Gazette. No reason had been disclosed in the Affidavit for such conduct by a Client, especially a bank trading in money meant to settle their fees. The default was unjustified and did not merit the exercise of discretion from a Court of justice.
6. The Applicant also averred that on 4th March 2024, his office served the Respondent/Client with its Bill of Costs through an email sent to
(i) Doreen Kimori, the Client’s Manager in charge of the Legal Department,
(ii) Chris Waitaka, a Legal Officer in the Legal Department, and
(iii) Debra Ayiwaa who was the Company Secretary with overall charge of Legal Services.
7. He referred to the email attached to the Return of Service filed herein, and a copy was exhibited in the Client’s application and marked YM-1. He also stated that it was not true that they served the Respondent/Client on 12th March 2024 when their email system was said to have had issues. This is as what was alleged in paragraph 5 of the Supporting Affidavit of Yvonne Masinde. He also disputed that all the Client’s relevant officers had left the employment of the Respondent/Client. This is because Doreen Kimori was in the employment of Respondent/Client’s employment when the Bill of Costs was served upon her on 4th March 2024 and when the matter was heard on 8th July 2024.
8. The Applicant further stated that he knows she left the Client’s employment at the end of July 2024. This is long after the service was effected and the taxing officer had heard the matter. He also knew Chris Waitaka was still in the employment of the Respondent/Client.
9. In answer to paragraph 6, the Applicant stated that the Respondent/Client, was duly served and did not appoint a lawyer to oppose the Bill of Costs. That the Bill was therefore uncontested on 16th April 2024 when it was scheduled for taxation. On that day, Hon. Adisa was not sitting, and it was shown on the cause list and CTS that this matter had been rescheduled to 8th July 2024. Copies of the Cause List and CTS record were annexed hereto and marked “ROO-1.”
10. The Applicant also averred that paragraph 8 was a mere speculation; the advice is not sound, and there is no error of principle in the taxation. The Bill was assessed by a taxing officer, not the Deputy Registrar, as alleged. Further, paragraph 9 was no excuse for the Bank, a profit-making entity, to instruct a lawyer in April 202. The Bank thereafter refuses to pay the fees and disbursements incurred in drawing, filing the Petition, and advertising that Petition in both the local dailies and Kenya Gazette.
11. The Applicant also contended that the sum of Kshs.6,945,292.36, in any event, was a petty expense to the Bank. It has not been shown that its payment would occasion any dent in the accounts of the Bank. As such, he verily believed the Respondent/Client had wrongly benefitted from the money meant to pay their fees in April 2021 and could not be heard to claim it would suffer loss if the same was recovered. It was also their statement that the Respondent/Client’s failure to pay costs had caused financial hardship and injury to the Applicant since April 2021 and the delay should not be extended.
Respondent’s Application dated 24th October 2024 (the Extension Application)
12. The Respondent’s Application dated 24th October 2024 (hereinafter referred to as “the Extension Application”) sought, inter alia, an order for the extension of time within which to file the Reference Application. This is said to be pursuant to Rule 11(4) of the Advocates (Remuneration) Order and under the inherent jurisdiction of the Court as provided for under Sections 1A and 3A of the Civil Procedure Act.
13. This Application was supported by the Affidavit of Yvone Masinde, the Company Secretary and Head of Legal of the Respondent. She stated that the Respondent filed the Reference Application within 14 days from the date it became aware of the Ruling on the Bill of Costs. Prior to this, the Respondent was not aware of the proceedings in the Court. The Applicant only notified the Respondent of the Court attendance on 16th April 2024, whereas the Applicant’s Bill of Costs was eventually taxed on 6th August 2024. The Applicant did not notify the Respondent of the Ruling scheduled for 6th August 2024. It only served the said Ruling on the Respondent on 26th August 2024. The Respondent therefore became aware of the Deputy Registrar’s Ruling on 26th August 2024. Soon thereafter it instructed its Advocates who filed the Reference Application 8 days later on 3rd September 2024. As detailed in the Reference Application, the Respondent had raised valid grounds for setting aside of the ruling on the taxation of the Applicant’s Bill of costs including that there is a fundamental error in principle in taxation of the bill of Costs. That the Deputy Registrar applied the wrong provisions of the Advocates (Remuneration) Order in taxing the said costs. Given that directions on the hearing of the Reference Application had already been issued, and no objection on the issue of time had been raised, it is clear that no prejudice would be occasioned or suffered if the orders sought herein were granted as prayed.
14. The Applicant filed Grounds of Opposition dated the 4th November 2024 wherein it was stated that this application was not just an abuse, but a blatant misuse of the Court process. That it was a unique barrier designed to stall the highlighting of submissions scheduled for 19/11/2024. Further that the Client deliberately failed to file its written submissions as directed by the Court on 17 October 2024. Instead, it continued to pile more applications in the Court, making unnecessary demands on the limited judicial time. Additionally, it was stated that the Application was brought too late in the day, and no explanation had been offered for the delay. The jurisdiction to extend time could only be invoked with sufficient reason for the delay incurred.
15. The Applicant also pointed to that the Application was not just groundless, but a mere ploy intended to buy time and delay the recovery of costs awarded to the Advocate. It lacked any substantial basis and was merely a delay tactic. The Client was trifling with the Court in that the Application claims that the Chamber Summons dated 3rd September 2024 were filed correctly within 14 days of learning of the decision. Yet, in the very application the Client seeks leave to file it out of time in the extended period. It was also stated that the application was not just incompetent, but an afterthought and a clear sign of the Client’s decision to avoid payment and as such the Applicant urged the Court that it ought to be dismissed with costs.
The Applicant’s Notice of Motion application dated 3rd October 2024 (the Application for Judgment)
16. The Applicant’s Notice of Motion application dated 3rd October 2024 (hereinafter referred to as “Application for Judgment”) brought under Section 51 (2) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules which sought, inter alia, orders:
(1) THAT judgment be entered for the Advocates/Applicant against the Client/Respondent:
a) In the sum of Ksh.6,945,292.36 being certified upon the Certificate of Taxation in the sum of Kshs.5,987,321.00;
b) The sum of Ksh.957,971.36 being VAT (at 16%) at the prevailing rate of 16%, and
c) Interest on (a) and (b) above at 14% p.a. from 03.08.2024 until complete payment.
(2) The Costs of this suit in all respects be borne by the Client/Respondent.
17. This Application was premised on the grounds that:
(a) The Advocates’ Bill of Costs dated 12/2/2024 was taxed and allowed on 6/8/2024 in the sum of Kshs.5,987,321/-
(b) The sum in (a) is now due. Under the statute on fees from the Client to the Advocates, VAT is chargeable.
(c) The client has not objected to the said taxation.
(d) Though the Client has filed an application dated 3/9/2024, no reference has been presented against the taxation.
(e) The application dated 3/9/2024 is intended to delay the taxed sum's recovery.
(f) It is in the interests of justice that the judgment be granted as prayed.
18. This Application was supported by the Affidavit of Dr. Robert Omondi Owino, an Advocate of the High Court of Kenya and currently practicing as such with the Advocate/Applicant firm wherein was averred that:
(a) THAT the Advocates’ Bill of Costs dated 12/2/2024 was taxed and allowed on 6/8/2024 in the sum of Kshs.5,987,321/=. The Certificate of Taxation is annexed and marked “ROO-1”.
(b) THAT Kshs.6,945,292.36 now includes VAT at 16%. Under the statute on fees from the Client to the Advocate, VAT is chargeable.
(c) THAT I served the Client with the Certificate of Taxation on 28/8/2024, while a letter of demand dated the same date was also issued and marked “ROO-2” and “ROO-3” respectively.
(d) THAT I know of the Client’s application dated 3/9/2024 seeking a reference against the taxation ruling.
(e) THAT same is yet to be heard and determined and no stay orders have been issued.
(f) THAT the Client, in breach of its duties, has delayed to pay our costs taxed in filing the Bill of Costs.
(g) THAT whereas the Client has the luxury of time to select deposits from its accounts and settle its financial obligations, the Advocate/Applicant suffers prejudice from the delay in recovering taxed costs for legal services it rendered to the Client.
(h) THAT I swear this affidavit in support of this Application for judgment for recovery of its fees since April 2024, and on the basis of the Certificate of Taxation.
19. The Respondent, through its Advocates, filed Grounds of Opposition dated 8th day of October 2024, in Reply to the Applicant’s Application for judgment. This is on the grounds that the Applicant’s application for judgment which was made under Section 51 (2) of the Advocates Act was unsustainable. This is because there was a pending reference application. It was imperative and in the interest of justice that the reference application be heard and determined first.
20. The Respondent also averred therein that the Certificate of Costs that the Applicant sought to enforce through the application was improperly issued. The Applicant’s Bill of Costs was taxed without proper notice to the Respondent. That the Respondent therefore did not have an opportunity to participate in the taxation proceedings and submit a response to the Applicant’s Bill of Costs.
21. It was also their contention that there was an error in principle in taxation of the Applicant’s Bill of Costs. That the Deputy Registrar applied Schedule 6 (b) of the Advocates (Remuneration) Order (ARO) without taking into account Schedule 6 (e). That the costs taxed exceed the base fees prescribed in the ARO by a multiplier of over 500.
22. Further, that, the payment of the taxed costs as they were, prior to a reference would result in unjust enrichment of the Applicant and a miscarriage of justice that this Honourable Court should not countenance. It was necessary that the Bill of Costs be fairly taxed by the Court after consideration of all the material issues including the Respondent’s arguments in opposition to the bill.
23. It was also their contention that it would be unfairly prejudicial for judgment to be entered against the Respondent for the substantial Kshs.6,945,292.36 sought in the application without the bill of costs being properly taxed. The Respondent also averred that on the other hand no prejudice would be occasioned to the Applicant if the Court allowed the Respondent to respond to the Bill of Costs in a re-taxation process.
RESPONDENT’S SUBMISSIONS
24. As regards the Extension Application, the Respondent relied on the High Court case in Sunsand Dunes Limited v Raiya Construction Limited [2020] eKLR when it considered a similar application for extension of time for filing a reference that was about 20 days out of time. Similarly, the Respondent also relied on PMM v NWM [2018] eKLR where the High Court exercised its discretion in favour of the Respondent seeking an extension of time to file a reference. The Court accepted that such an application could only be filed when the Applicant became aware of the taxation.
25. The Respondent submitted that the Applicant did not deny the sequence of events set out. That it was undeniable that the Respondent moved with speed and expediency to challenge the taxation of the Bill through the Reference Application as soon as it became aware of that. Nevertheless, and out of abundant caution, the Respondent had filed the Extension Application to enable the matter to be dealt with on the merits.
26. The Respondent also contended that the Reference Application raised an issue of an error in principle by the Deputy Registrar in taxing the Bill and such matter needed to be considered and determined by this Honourable Court on the merits of it. The Applicant would not suffer any prejudice if the extension of time was granted noted that directions on the disposal of the Reference Application had already been given. That contrary to the Applicant’s Grounds of Opposition, no delay at all would be caused as all the applications were capable of being dealt with contemporaneously.
27. The Respondent on the point that it was not properly served, submitted that upholding the taxation would be tantamount to condemning the Respondent to pay the taxed amount without the Respondent being given a chance to defend itself in the proceedings in which the decision on the taxation was made. This would be contrary to the fundamental principle in Article 50 (1) of the Constitution considered by the High Court in Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another [2022] eKLR
28. On the issue of an error in principle of taxation, it was submitted that the Respondent has demonstrated that the Deputy Registrar committed an error in principle in taxing the Bill. It is clear from the Instruction Fees detailed under Item 1 of the Bill; the Applicant provided legal services in connection with filing of a creditor’s bankruptcy Petition. This means that the Applicant’s fees should have been calculated in accordance with the provisions of Schedule 6 (1) (e) of the ARO. Nevertheless, the Deputy Registrar committed an error in principle by applying Schedule 6 (1) (b) of the ARO using the value of the debt that was the subject of the bankruptcy Petition as a basis for calculating instruction fees.
29. It was also submitted that it was unfair and illogical to apply the value of the debt that was the subject matter of a bankruptcy Petition as such Petition was filed because the debtor was insolvent and had been unable to repay the debt. This meant the Respondent debt was not paid and there was a fair chance it would not be recovered. The Bill as drawn only showed that the Petition was filed but no recovery was made. This was the specific reason that the ARO provided for a different manner for calculating instruction fees in a bankruptcy Petition.
30. Schedule 6 (1) (e) of the ARO prescribed a base fee of Kshs.12,000 for filing a bankruptcy Petition whereas the erroneous application of Schedule 6 (1) (b) of the ARO has led taxation of the Applicant’s fees at Kshs.5,987,321 plus 16% VAT for a total of Kshs.6,945,292 which was more than 575 times the base prescribed by the ARO. This was undoubtedly excessive by any measure. Reliance was placed in the High Court case in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR where the Court held that it would interfere with the decision of the Taxing Master where there has been an error in principle.
31. The Respondent also submitted that the erroneous taxation of the Bill has led to an excessive award of costs to the Applicant contrary to the principles of fairness and economic value as enunciated by the Supreme Court in Kenya Airports Authority v Otieno Ragot Advocates Petition E011 of 2023.
APPLICANT’S SUBMISSIONS
32. It was submitted that the Chamber Summons application dated 3rd September 2024 was framed as a reference purportedly brought under Rule 11 of the Advocates (Remuneration) Order. However, the application failed to comply with the mandatory requirements of Rule 11(1) and (2). The Client/Applicant relied on its failure to oppose the taxation, despite having been duly served, and on its claim that it became aware of the taxation on 26th August 2024 to advance the argument that it was not heard and, therefore, the Bill of Costs ought to be heard afresh.
33. It was further submitted that the Court of Appeal has, in numerous decisions, held that the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act, or its unlimited jurisdiction under the Constitution, cannot be invoked (i) where a statutory procedure exists to address the matter or (ii) to defeat or circumvent the express provisions of a statute. Reference was made to the decisions in Mayers and Another v Akira Ranch Ltd (No. 2) [1972] EA 347 and Chatur Radio Service v Pronogram Limited [1994] eKLR.
34. The Applicant argued that the inherent jurisdiction of the Court ought not to be invoked in the present matter, as the taxation of costs and the procedure for setting aside taxed costs are expressly provided for under Rule 11 of the Advocates (Remuneration) Order. The Courts have consistently held that the Advocates (Remuneration) Order is a complete code, thereby excluding the application of any other legal regime. In support of this position, reliance was placed on the decision of Ringera J. (as he then was) in Machira & Co. Advocates v Arthur Magugu & Another, HCC Misc. Application No. 358 of 2001 [2002] 2 EA 428 (CCK), a holding that was subsequently affirmed by the Court of Appeal in Machira & Company Advocates v Arthur K. Magugu & Another (2012) eKLR. At paragraph 10, the Court held that the Advocates (Remuneration) Order is a complete code and that the Civil Procedure Act does not apply.
35. It was thus contended that the Applicant was under a legal obligation to comply strictly with the Advocates (Remuneration) Order and that the present application constituted an attempt to circumvent and defeat the express provisions of Rule 11 thereof. Accordingly, it was not a proper case for the invocation of the Court’s inherent jurisdiction.
36. On the question of whether this was a proper case for the invocation of Article 50 of the Constitution, it was submitted that the Applicant/Client sought to rely on Article 50. This was in an attempt to set aside the taxation and to have the Bill of Costs referred to another Taxing Officer on the tenuous and unsubstantiated ground that it had not been served with the Bill of Costs and the taxation notice. It was submitted that the Constitution should not be invoked as a tool to resolve ordinary litigation disputes, as doing so risks diminishing the moral and legal force of the Constitution.
37. It was further submitted that where a fundamental right—such as the right to be heard in taxation proceedings—is adequately regulated and provided for through specific legislation, in this instance the Advocates (Remuneration) Order (ARO), that legislation becomes the primary mechanism for enforcing the right. The underlying constitutional provision should not be used to override or bypass such statutory frameworks.
38. In support of this position, reliance was placed on the holding in George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited, Minister for Industrialization & Attorney-General [2014] KEELRC 693 (KLR), wherein the Court affirmed that constitutional rights which are governed by statute must be enforced in accordance with the procedures set out in the relevant legislation.
39. Accordingly, it was submitted that the Applicant should refrain from invoking the Constitution to seek a setting aside of the taxation, and should instead follow the proper procedures prescribed under the Advocates (Remuneration) Order.
40. On the issue of whether the Client was served with the Bill of Costs and the Taxation Notice, it was submitted that in paragraph 5 of the Supporting Affidavit sworn on 3rd September 2024 by Yvonne Masinde, the Client/Applicant alleged that it experienced a problem with its email system on 12th March 2024. That allegedly this resulted in its failure to receive the documents served upon it. This explanation was characterized as a convenient yet dishonest excuse.
41. It was further submitted that the Affidavit of Service sworn by Elizabeth Muthoki Kisua and filed in court—an affidavit that was, notably, exhibited by the Applicant itself as annexure “YM-1”—indicated that service of the Bill of Costs and the Taxation Notice was effected on 4th March 2024, not 12th March 2024 as claimed. The Applicant also alleged that one of its officers had exited employment, yet the evidence adduced showed that the said officer only left employment at the end of July 2024, not in March. This contradiction suggested a deliberate attempt by the Client/Applicant to misrepresent facts and mislead the Court.
42. The Court was urged to find that the explanation offered in paragraph 5 of the Supporting Affidavit was not only lacking in seriousness but also constituted an attempt to trifle with the judicial process. It was further submitted that the Bill of Costs and the Taxation Notice were served upon three senior officers of the Client/Applicant, as detailed in paragraph 6 of the Replying Affidavit sworn on 30th September 2024 by Dr. Robert Omondi. The service was effected upon Doreen Kimori, the Manager in charge of the Legal Department; Chris Waitaka, a Legal Officer; and Debra Ajwang, the Company Secretary with overall responsibility for legal services. Notably, none of these officers had sworn any affidavit to deny receipt of service or to explain their collective failure to instruct Counsel or to oppose the Bill of Costs.
43. It was also submitted that there was no evidence from the Applicant/Bank’s email service providers to support the claim that the email system was inoperative on 4th March 2024, or that the emails addressed to the said senior officers failed to deliver. When the matter proceeded before the taxing officer, the Client/Applicant had neither entered appearance nor indicated any intention to defend the taxation, leaving the Taxing Officer with no option but to proceed in accordance with the rules.
44. Accordingly, the Taxing Officer considered the Bill of Costs and rendered an award as required under the law. In support of this position, the Court was referred to the decision in Aoro v Were (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR) (31 October 2022), particularly paragraph 36 of the judgment.
45. As regards the issue of whether the Applicant wrote a Notice of Objection to the Taxing Officer and obtained reasons as required by Rule 11(1) of the Advocates Remuneration Order (ARO), it was submitted th
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1. This Ruling is in respect of three applications namely;
(i) The Respondent’s Chamber Summons application dated 3rd September 2024 (the Reference Application) supported by the Respondent’s Supporting Affidavit of Yvonne Masinde sworn on 3rd September 2024.
(ii) The Respondent’s Application dated 24th October 2024 (the Extension Application) supported by the affidavit of Yvonne Masinde sworn on the same date.
(iii) Finally, the Applicant’s Notice of Motion application dated 3rd October 2024 (the Application for Entry of Judgment) supported by the affidavit of Dr. Robert Owino sworn on the same date.
Respondent’s Chamber Summons application dated 3rd September 2024 (the Reference Application)
2. The Respondent's Chamber Summons application dated 3rd September 2024 (hereinafter referred to as "the Reference Application") brought under Rule 11 of the Advocates (Remuneration) Order sought, inter alia, the following orders:
(a) This application be certified urgent, and service thereof be dispensed with in the first instance and prayer 2 be granted ex parte.
(b) Pending the hearing and determination of this application, the execution of the Certificate of Costs issued on 15th August 2024 in respect of the Applicant’s bill of costs dated 12th February 2024 be stayed.
(c) The Ruling dated and delivered on 6th August 2024 on the taxation of the Applicant’s bill of costs dated 12th February 2024 be set aside.
(d) The Applicant’s bill of costs dated 12th February 2024 be remitted for taxation afresh.
(e) The costs of this application be provided for.
3. The Reference Application was premised on the grounds that:
(a) The Applicant filed the bill of costs dated 12th February 2024 in which its costs had been drawn at Kshs.6,040,021.67. The bill of costs was initially fixed for taxation on 16th April 2024.
(b) The Applicant sent notice of the taxation to the Respondent’s officers by email sent on 12th March 2024. At the time the email was sent, one of the officers of the Respondent had left the Respondent’s employ and there was an issue affecting the Respondent’s email system which caused the said email to be inadvertently missed.
(c) The bill of costs was subsequently rescheduled to 8th July 2024 when the Deputy Registrar fixed it for ruling on 6th August 2024. The Applicant did not issue any further notices of these subsequent dates to the Respondent.
(d) The Respondent therefore did not have an opportunity to participate in the taxation proceedings and submit a response to the Applicant’s bill of costs.
(e) The Deputy Registrar delivered a ruling on 6th August 2024 where the Applicant’s bill was taxed at Kshs.5,987,321 with only Kshs.52,700.67 was taxed off. A Certificate of Costs was issued on 15th August 2024 which the Applicant has served on the Respondent and demanded settlement of the taxed costs as well as value added tax bring the total amount to Kshs.6,945,292.36.
(f) There is an error in principle in taxation of the Applicant’s bill of costs as the Deputy Registrar applied Schedule 6 (b) of the Advocates (Remuneration) Order without taking into account Schedule 6 (e) noting that the underlying instructions involved bankruptcy proceedings against a debtor of the Respondent.
(g) There is an impending risk of execution by the Applicant against the Respondent for a significant amount of Kshs.6,945,292.36 noting that it is a deposit taking financial institution that will be required to pay a significant amount of money that will be extremely prejudicial to its operations. On the other hand, no prejudice will be occasioned to the Applicant if the orders sought herein are granted.
(h) It is fair and just that the bill of costs be remitted for re-taxation and the Respondent be given a proper opportunity to respond to the bill of costs.
4. The Reference Application was supported by the affidavit of Yvone Masinde, the Company Secretary and Head of Legal of the Respondent, that:
(a) The Applicant filed the bill of costs dated 12th February 2024 in which its costs had been drawn at Kshs.6,040,021.67. The bill of costs was initially fixed for taxation on 16th April 2024.
(b) The Applicant sent notice of the taxation to the Respondent’s officers by email sent on 12th March 2024. At the time the email was sent, one of the officers of the Respondent had left the Respondent’s service and the server was an issue affecting the Respondent’s email system which caused the said email to be inadvertently missed. A copy of the Applicant’s affidavit of service sworn on 12th March 2024 with the said email annexed is at pages 1 to 4 of “YM-1”.
(c) The bill of costs was subsequently rescheduled to 8th July 2024 when the Deputy Registrar fixed it for ruling on 6th August 2024. The Applicant did not issue any further notices of these subsequent dates to the Respondent. The Respondent therefore did not have an opportunity to participate in the taxation proceedings and submit a response to the Applicant’s bill of costs.
(d) The Deputy Registrar delivered a ruling on 6th August 2024 where the Applicant’s bill was taxed at Kshs.5,987,321 with only Kshs.52,700.67 was taxed off. A Certificate of Costs was issued on 15th August 2024 which the Applicant has served on the Respondent and demanded settlement of the taxed costs as well as value added tax bring the total amount to Kshs.6,945,292.36.
(e) There was an error in principle in taxation of the Applicant’s bill of costs as the Deputy Registrar applied Schedule 6 (b) of the Advocates (Remuneration) Order without taking into account Schedule 6 (e) noting that the underlying instructions involved bankruptcy proceedings against a debtor of the Respondent.
(f) There was an impending risk of execution by the Applicant against the Respondent for a significant amount of Kshs.6,945,292.36 noting that it is a cost arising under judicial instruction that will be required to pay a significant amount of money that will be extremely prejudicial to its operations. On the other hand, no prejudice will be occasioned to the Applicant if the orders sought herein are granted.
(g) It was fair and just that the bill of costs be remitted for re-taxation and the Respondent be given a proper opportunity to be heard.
5. This Application was opposed through the Replying Affidavit of Dr. Robert Omondi Owino, the Managing Partner of the Advocate/Applicant herein, sworn on the 30th day of September 2024. He deponed that the Certificate of Costs was incapable of execution, and the Court could not stay it as sought. The Advocates Remuneration Order did not contemplate the stay of such a Certificate. Additionally, the Respondent/Client’s application, as framed and presented to the Court, was utterly incompetent. It did not disclose any valid grounds for setting aside the taxation and award made on 6th August 2024. Applicant also averred that the Respondent/Client had, since April 2021, refused to pay fees and refund disbursements, including charges for filing the suit and advertising the Petition in the newspapers and Kenya Gazette. No reason had been disclosed in the Affidavit for such conduct by a Client, especially a bank trading in money meant to settle their fees. The default was unjustified and did not merit the exercise of discretion from a Court of justice.
6. The Applicant also averred that on 4th March 2024, his office served the Respondent/Client with its Bill of Costs through an email sent to
(i) Doreen Kimori, the Client’s Manager in charge of the Legal Department,
(ii) Chris Waitaka, a Legal Officer in the Legal Department, and
(iii) Debra Ayiwaa who was the Company Secretary with overall charge of Legal Services.
7. He referred to the email attached to the Return of Service filed herein, and a copy was exhibited in the Client’s application and marked YM-1. He also stated that it was not true that they served the Respondent/Client on 12th March 2024 when their email system was said to have had issues. This is as what was alleged in paragraph 5 of the Supporting Affidavit of Yvonne Masinde. He also disputed that all the Client’s relevant officers had left the employment of the Respondent/Client. This is because Doreen Kimori was in the employment of Respondent/Client’s employment when the Bill of Costs was served upon her on 4th March 2024 and when the matter was heard on 8th July 2024.
8. The Applicant further stated that he knows she left the Client’s employment at the end of July 2024. This is long after the service was effected and the taxing officer had heard the matter. He also knew Chris Waitaka was still in the employment of the Respondent/Client.
9. In answer to paragraph 6, the Applicant stated that the Respondent/Client, was duly served and did not appoint a lawyer to oppose the Bill of Costs. That the Bill was therefore uncontested on 16th April 2024 when it was scheduled for taxation. On that day, Hon. Adisa was not sitting, and it was shown on the cause list and CTS that this matter had been rescheduled to 8th July 2024. Copies of the Cause List and CTS record were annexed hereto and marked “ROO-1.”
10. The Applicant also averred that paragraph 8 was a mere speculation; the advice is not sound, and there is no error of principle in the taxation. The Bill was assessed by a taxing officer, not the Deputy Registrar, as alleged. Further, paragraph 9 was no excuse for the Bank, a profit-making entity, to instruct a lawyer in April 202. The Bank thereafter refuses to pay the fees and disbursements incurred in drawing, filing the Petition, and advertising that Petition in both the local dailies and Kenya Gazette.
11. The Applicant also contended that the sum of Kshs.6,945,292.36, in any event, was a petty expense to the Bank. It has not been shown that its payment would occasion any dent in the accounts of the Bank. As such, he verily believed the Respondent/Client had wrongly benefitted from the money meant to pay their fees in April 2021 and could not be heard to claim it would suffer loss if the same was recovered. It was also their statement that the Respondent/Client’s failure to pay costs had caused financial hardship and injury to the Applicant since April 2021 and the delay should not be extended.
Respondent’s Application dated 24th October 2024 (the Extension Application)
12. The Respondent’s Application dated 24th October 2024 (hereinafter referred to as “the Extension Application”) sought, inter alia, an order for the extension of time within which to file the Reference Application. This is said to be pursuant to Rule 11(4) of the Advocates (Remuneration) Order and under the inherent jurisdiction of the Court as provided for under Sections 1A and 3A of the Civil Procedure Act.
13. This Application was supported by the Affidavit of Yvone Masinde, the Company Secretary and Head of Legal of the Respondent. She stated that the Respondent filed the Reference Application within 14 days from the date it became aware of the Ruling on the Bill of Costs. Prior to this, the Respondent was not aware of the proceedings in the Court. The Applicant only notified the Respondent of the Court attendance on 16th April 2024, whereas the Applicant’s Bill of Costs was eventually taxed on 6th August 2024. The Applicant did not notify the Respondent of the Ruling scheduled for 6th August 2024. It only served the said Ruling on the Respondent on 26th August 2024. The Respondent therefore became aware of the Deputy Registrar’s Ruling on 26th August 2024. Soon thereafter it instructed its Advocates who filed the Reference Application 8 days later on 3rd September 2024. As detailed in the Reference Application, the Respondent had raised valid grounds for setting aside of the ruling on the taxation of the Applicant’s Bill of costs including that there is a fundamental error in principle in taxation of the bill of Costs. That the Deputy Registrar applied the wrong provisions of the Advocates (Remuneration) Order in taxing the said costs. Given that directions on the hearing of the Reference Application had already been issued, and no objection on the issue of time had been raised, it is clear that no prejudice would be occasioned or suffered if the orders sought herein were granted as prayed.
14. The Applicant filed Grounds of Opposition dated the 4th November 2024 wherein it was stated that this application was not just an abuse, but a blatant misuse of the Court process. That it was a unique barrier designed to stall the highlighting of submissions scheduled for 19/11/2024. Further that the Client deliberately failed to file its written submissions as directed by the Court on 17 October 2024. Instead, it continued to pile more applications in the Court, making unnecessary demands on the limited judicial time. Additionally, it was stated that the Application was brought too late in the day, and no explanation had been offered for the delay. The jurisdiction to extend time could only be invoked with sufficient reason for the delay incurred.
15. The Applicant also pointed to that the Application was not just groundless, but a mere ploy intended to buy time and delay the recovery of costs awarded to the Advocate. It lacked any substantial basis and was merely a delay tactic. The Client was trifling with the Court in that the Application claims that the Chamber Summons dated 3rd September 2024 were filed correctly within 14 days of learning of the decision. Yet, in the very application the Client seeks leave to file it out of time in the extended period. It was also stated that the application was not just incompetent, but an afterthought and a clear sign of the Client’s decision to avoid payment and as such the Applicant urged the Court that it ought to be dismissed with costs.
The Applicant’s Notice of Motion application dated 3rd October 2024 (the Application for Judgment)
16. The Applicant’s Notice of Motion application dated 3rd October 2024 (hereinafter referred to as “Application for Judgment”) brought under Section 51 (2) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules which sought, inter alia, orders:
(1) THAT judgment be entered for the Advocates/Applicant against the Client/Respondent:
a) In the sum of Ksh.6,945,292.36 being certified upon the Certificate of Taxation in the sum of Kshs.5,987,321.00;
b) The sum of Ksh.957,971.36 being VAT (at 16%) at the prevailing rate of 16%, and
c) Interest on (a) and (b) above at 14% p.a. from 03.08.2024 until complete payment.
(2) The Costs of this suit in all respects be borne by the Client/Respondent.
17. This Application was premised on the grounds that:
(a) The Advocates’ Bill of Costs dated 12/2/2024 was taxed and allowed on 6/8/2024 in the sum of Kshs.5,987,321/-
(b) The sum in (a) is now due. Under the statute on fees from the Client to the Advocates, VAT is chargeable.
(c) The client has not objected to the said taxation.
(d) Though the Client has filed an application dated 3/9/2024, no reference has been presented against the taxation.
(e) The application dated 3/9/2024 is intended to delay the taxed sum's recovery.
(f) It is in the interests of justice that the judgment be granted as prayed.
18. This Application was supported by the Affidavit of Dr. Robert Omondi Owino, an Advocate of the High Court of Kenya and currently practicing as such with the Advocate/Applicant firm wherein was averred that:
(a) THAT the Advocates’ Bill of Costs dated 12/2/2024 was taxed and allowed on 6/8/2024 in the sum of Kshs.5,987,321/=. The Certificate of Taxation is annexed and marked “ROO-1”.
(b) THAT Kshs.6,945,292.36 now includes VAT at 16%. Under the statute on fees from the Client to the Advocate, VAT is chargeable.
(c) THAT I served the Client with the Certificate of Taxation on 28/8/2024, while a letter of demand dated the same date was also issued and marked “ROO-2” and “ROO-3” respectively.
(d) THAT I know of the Client’s application dated 3/9/2024 seeking a reference against the taxation ruling.
(e) THAT same is yet to be heard and determined and no stay orders have been issued.
(f) THAT the Client, in breach of its duties, has delayed to pay our costs taxed in filing the Bill of Costs.
(g) THAT whereas the Client has the luxury of time to select deposits from its accounts and settle its financial obligations, the Advocate/Applicant suffers prejudice from the delay in recovering taxed costs for legal services it rendered to the Client.
(h) THAT I swear this affidavit in support of this Application for judgment for recovery of its fees since April 2024, and on the basis of the Certificate of Taxation.
19. The Respondent, through its Advocates, filed Grounds of Opposition dated 8th day of October 2024, in Reply to the Applicant’s Application for judgment. This is on the grounds that the Applicant’s application for judgment which was made under Section 51 (2) of the Advocates Act was unsustainable. This is because there was a pending reference application. It was imperative and in the interest of justice that the reference application be heard and determined first.
20. The Respondent also averred therein that the Certificate of Costs that the Applicant sought to enforce through the application was improperly issued. The Applicant’s Bill of Costs was taxed without proper notice to the Respondent. That the Respondent therefore did not have an opportunity to participate in the taxation proceedings and submit a response to the Applicant’s Bill of Costs.
21. It was also their contention that there was an error in principle in taxation of the Applicant’s Bill of Costs. That the Deputy Registrar applied Schedule 6 (b) of the Advocates (Remuneration) Order (ARO) without taking into account Schedule 6 (e). That the costs taxed exceed the base fees prescribed in the ARO by a multiplier of over 500.
22. Further, that, the payment of the taxed costs as they were, prior to a reference would result in unjust enrichment of the Applicant and a miscarriage of justice that this Honourable Court should not countenance. It was necessary that the Bill of Costs be fairly taxed by the Court after consideration of all the material issues including the Respondent’s arguments in opposition to the bill.
23. It was also their contention that it would be unfairly prejudicial for judgment to be entered against the Respondent for the substantial Kshs.6,945,292.36 sought in the application without the bill of costs being properly taxed. The Respondent also averred that on the other hand no prejudice would be occasioned to the Applicant if the Court allowed the Respondent to respond to the Bill of Costs in a re-taxation process.
RESPONDENT’S SUBMISSIONS
24. As regards the Extension Application, the Respondent relied on the High Court case in Sunsand Dunes Limited v Raiya Construction Limited [2020] eKLR when it considered a similar application for extension of time for filing a reference that was about 20 days out of time. Similarly, the Respondent also relied on PMM v NWM [2018] eKLR where the High Court exercised its discretion in favour of the Respondent seeking an extension of time to file a reference. The Court accepted that such an application could only be filed when the Applicant became aware of the taxation.
25. The Respondent submitted that the Applicant did not deny the sequence of events set out. That it was undeniable that the Respondent moved with speed and expediency to challenge the taxation of the Bill through the Reference Application as soon as it became aware of that. Nevertheless, and out of abundant caution, the Respondent had filed the Extension Application to enable the matter to be dealt with on the merits.
26. The Respondent also contended that the Reference Application raised an issue of an error in principle by the Deputy Registrar in taxing the Bill and such matter needed to be considered and determined by this Honourable Court on the merits of it. The Applicant would not suffer any prejudice if the extension of time was granted noted that directions on the disposal of the Reference Application had already been given. That contrary to the Applicant’s Grounds of Opposition, no delay at all would be caused as all the applications were capable of being dealt with contemporaneously.
27. The Respondent on the point that it was not properly served, submitted that upholding the taxation would be tantamount to condemning the Respondent to pay the taxed amount without the Respondent being given a chance to defend itself in the proceedings in which the decision on the taxation was made. This would be contrary to the fundamental principle in Article 50 (1) of the Constitution considered by the High Court in Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another [2022] eKLR
28. On the issue of an error in principle of taxation, it was submitted that the Respondent has demonstrated that the Deputy Registrar committed an error in principle in taxing the Bill. It is clear from the Instruction Fees detailed under Item 1 of the Bill; the Applicant provided legal services in connection with filing of a creditor’s bankruptcy Petition. This means that the Applicant’s fees should have been calculated in accordance with the provisions of Schedule 6 (1) (e) of the ARO. Nevertheless, the Deputy Registrar committed an error in principle by applying Schedule 6 (1) (b) of the ARO using the value of the debt that was the subject of the bankruptcy Petition as a basis for calculating instruction fees.
29. It was also submitted that it was unfair and illogical to apply the value of the debt that was the subject matter of a bankruptcy Petition as such Petition was filed because the debtor was insolvent and had been unable to repay the debt. This meant the Respondent debt was not paid and there was a fair chance it would not be recovered. The Bill as drawn only showed that the Petition was filed but no recovery was made. This was the specific reason that the ARO provided for a different manner for calculating instruction fees in a bankruptcy Petition.
30. Schedule 6 (1) (e) of the ARO prescribed a base fee of Kshs.12,000 for filing a bankruptcy Petition whereas the erroneous application of Schedule 6 (1) (b) of the ARO has led taxation of the Applicant’s fees at Kshs.5,987,321 plus 16% VAT for a total of Kshs.6,945,292 which was more than 575 times the base prescribed by the ARO. This was undoubtedly excessive by any measure. Reliance was placed in the High Court case in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR where the Court held that it would interfere with the decision of the Taxing Master where there has been an error in principle.
31. The Respondent also submitted that the erroneous taxation of the Bill has led to an excessive award of costs to the Applicant contrary to the principles of fairness and economic value as enunciated by the Supreme Court in Kenya Airports Authority v Otieno Ragot Advocates Petition E011 of 2023.
APPLICANT’S SUBMISSIONS
32. It was submitted that the Chamber Summons application dated 3rd September 2024 was framed as a reference purportedly brought under Rule 11 of the Advocates (Remuneration) Order. However, the application failed to comply with the mandatory requirements of Rule 11(1) and (2). The Client/Applicant relied on its failure to oppose the taxation, despite having been duly served, and on its claim that it became aware of the taxation on 26th August 2024 to advance the argument that it was not heard and, therefore, the Bill of Costs ought to be heard afresh.
33. It was further submitted that the Court of Appeal has, in numerous decisions, held that the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act, or its unlimited jurisdiction under the Constitution, cannot be invoked (i) where a statutory procedure exists to address the matter or (ii) to defeat or circumvent the express provisions of a statute. Reference was made to the decisions in Mayers and Another v Akira Ranch Ltd (No. 2) [1972] EA 347 and Chatur Radio Service v Pronogram Limited [1994] eKLR.
34. The Applicant argued that the inherent jurisdiction of the Court ought not to be invoked in the present matter, as the taxation of costs and the procedure for setting aside taxed costs are expressly provided for under Rule 11 of the Advocates (Remuneration) Order. The Courts have consistently held that the Advocates (Remuneration) Order is a complete code, thereby excluding the application of any other legal regime. In support of this position, reliance was placed on the decision of Ringera J. (as he then was) in Machira & Co. Advocates v Arthur Magugu & Another, HCC Misc. Application No. 358 of 2001 [2002] 2 EA 428 (CCK), a holding that was subsequently affirmed by the Court of Appeal in Machira & Company Advocates v Arthur K. Magugu & Another (2012) eKLR. At paragraph 10, the Court held that the Advocates (Remuneration) Order is a complete code and that the Civil Procedure Act does not apply.
35. It was thus contended that the Applicant was under a legal obligation to comply strictly with the Advocates (Remuneration) Order and that the present application constituted an attempt to circumvent and defeat the express provisions of Rule 11 thereof. Accordingly, it was not a proper case for the invocation of the Court’s inherent jurisdiction.
36. On the question of whether this was a proper case for the invocation of Article 50 of the Constitution, it was submitted that the Applicant/Client sought to rely on Article 50. This was in an attempt to set aside the taxation and to have the Bill of Costs referred to another Taxing Officer on the tenuous and unsubstantiated ground that it had not been served with the Bill of Costs and the taxation notice. It was submitted that the Constitution should not be invoked as a tool to resolve ordinary litigation disputes, as doing so risks diminishing the moral and legal force of the Constitution.
37. It was further submitted that where a fundamental right—such as the right to be heard in taxation proceedings—is adequately regulated and provided for through specific legislation, in this instance the Advocates (Remuneration) Order (ARO), that legislation becomes the primary mechanism for enforcing the right. The underlying constitutional provision should not be used to override or bypass such statutory frameworks.
38. In support of this position, reliance was placed on the holding in George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited, Minister for Industrialization & Attorney-General [2014] KEELRC 693 (KLR), wherein the Court affirmed that constitutional rights which are governed by statute must be enforced in accordance with the procedures set out in the relevant legislation.
39. Accordingly, it was submitted that the Applicant should refrain from invoking the Constitution to seek a setting aside of the taxation, and should instead follow the proper procedures prescribed under the Advocates (Remuneration) Order.
40. On the issue of whether the Client was served with the Bill of Costs and the Taxation Notice, it was submitted that in paragraph 5 of the Supporting Affidavit sworn on 3rd September 2024 by Yvonne Masinde, the Client/Applicant alleged that it experienced a problem with its email system on 12th March 2024. That allegedly this resulted in its failure to receive the documents served upon it. This explanation was characterized as a convenient yet dishonest excuse.
41. It was further submitted that the Affidavit of Service sworn by Elizabeth Muthoki Kisua and filed in court—an affidavit that was, notably, exhibited by the Applicant itself as annexure “YM-1”—indicated that service of the Bill of Costs and the Taxation Notice was effected on 4th March 2024, not 12th March 2024 as claimed. The Applicant also alleged that one of its officers had exited employment, yet the evidence adduced showed that the said officer only left employment at the end of July 2024, not in March. This contradiction suggested a deliberate attempt by the Client/Applicant to misrepresent facts and mislead the Court.
42. The Court was urged to find that the explanation offered in paragraph 5 of the Supporting Affidavit was not only lacking in seriousness but also constituted an attempt to trifle with the judicial process. It was further submitted that the Bill of Costs and the Taxation Notice were served upon three senior officers of the Client/Applicant, as detailed in paragraph 6 of the Replying Affidavit sworn on 30th September 2024 by Dr. Robert Omondi. The service was effected upon Doreen Kimori, the Manager in charge of the Legal Department; Chris Waitaka, a Legal Officer; and Debra Ajwang, the Company Secretary with overall responsibility for legal services. Notably, none of these officers had sworn any affidavit to deny receipt of service or to explain their collective failure to instruct Counsel or to oppose the Bill of Costs.
43. It was also submitted that there was no evidence from the Applicant/Bank’s email service providers to support the claim that the email system was inoperative on 4th March 2024, or that the emails addressed to the said senior officers failed to deliver. When the matter proceeded before the taxing officer, the Client/Applicant had neither entered appearance nor indicated any intention to defend the taxation, leaving the Taxing Officer with no option but to proceed in accordance with the rules.
44. Accordingly, the Taxing Officer considered the Bill of Costs and rendered an award as required under the law. In support of this position, the Court was referred to the decision in Aoro v Were (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR) (31 October 2022), particularly paragraph 36 of the judgment.
45. As regards the issue of whether the Applicant wrote a Notice of Objection to the Taxing Officer and obtained reasons as required by Rule 11(1) of the Advocates Remuneration Order (ARO), it was submitted th
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