Introduction
1. This ruling determines two applications, the Chamber Summons application dated 7th February 2024 by the Respondents/Clients, and the second, a Further Amended Notice of Motion application dated 14th June 2024 by the Advocate/Applicant.
2. The first Application is the application dated 7th February 2024 by the Clients (hereinafter also referred to as “the Reference” or “Client’s Application” as the case may be) is expressed to have been brought under Rule 11(2) of the Advocates (Remuneration) (Amendment) Order 2014 and seeks the following orders;
i. THAT the awarding of interest per annum from 10th July 2017 in the ruling dated 23rd February 2024 be set aside and as a consequence interest be awarded from 22nd October 2021.
ii. THAT the costs of the application be provided for.
3. The Reference is predicated on the grounds on the face of the application and supported by the annexed affidavit of Francis Chege Maina, the 1st Respondent herein.
4. In the said affidavit, the applicant avers that he is the 1st Respondent and also authorized by the 3rd and 4th Respondents to swear the affidavit. He further avers that the Ruling on re-taxation of the amended Bill of Costs as directed by the Court of Appeal on 23rd February 2024 by Hon. S. Bett (DR) which awarded the Advocate the sum of Kshs. 10,036, 818.30 contained reasons for the taxation of each item, and therefore there was no reason to request reasons from the DR.
5. The applicant deposed that in the Ruling, the Taxing Officer unlawfully and/or irregularly awarded interest from 17th July 2017 which was the date when the Bill of costs was first taxed. According to the deponent, interest ought to be calculated from the date of the Court of Appeal Judgment, being 22nd October 2021, as opposed to 17th July 2027 as directed by the magistrate.
6. The Applicant/Client further stated that the impact of the court of appeal decision was that the entire taxation exercise by the previous Taxing officer was set aside, and interest cannot, therefore, be calculated from the date of the previous taxation (17th July 2027) but ought to be calculated from the date of the court of appeal judgment on 22nd October 2021.
7. In opposition to the chamber summons application (Client’s Application), the Advocate filed a notice of preliminary objection dated 12th April 2024 and a Replying Affidavit sworn on the same date, by Jeremy Njenga. In the Preliminary Objection, the Advocate raised the following two grounds; -
i. THAT irrespective of whether or not the taxation ruling dated 23rd February 2024 contained reasons for the taxed items, no notice of objection as provided for under the provisions of Rule 11(1) of the Advocates Remuneration Order was filed and served and the application was therefore not only prematurely filed, but is incompetent and ought to be struck off with costs.
ii. THAT failure to file and serve the notice of objection goes to the route of the court’s jurisdiction to deal with the purported reference and the Honourable court thus lack jurisdiction to entertain the application and it ought therefore to be struck off with costs.
8. In his affidavit in reply to the Application, the Advocate deponed and reiterated the grounds raised in the preliminary objection and further stated that award of interest is a discretionary remedy by the taxing master and that the Client has not demonstrated that the discretion was injudiciously exercised.
9. The Advocate further stated that the instant application by the Client is just an attempt to delay payment of fees and that the date of 22nd October 2921 proposed by the Client to be the date when interest is to start running has no factual and legal basis since Costs fell due, not from that date, but from 17.07.2017 when the Bill of Costs was taxed.
10. The second Application is by the Advocate. It is the Further Amended Notice of Motion dated 14th June 2024 brought pursuant to the provisions of Order 50 Rule 1 of the Civil Procedure Rules, Section 51 of the Advocates Act as read with Rule 7 of the Advocates (Remuneration) Order 2009. The Applicant/Advocate seeks the following orders;
i. THAT judgment for the sum of Kshs. 10,036,818.30 plus accrued interest thereon at 14% from 10th July 2017 until payment in full be entered in favour of the Applicant/Advocate as against the Respondents jointly and severally.
ii. THAT the costs of this application be provided for.
11. The application is anchored on the grounds on the face of it and supported by the supporting affidavit of the Advocate, Jeremy Njenga sworn on 14th June 2024. In the said affidavit, it is deposed that subsequent to the delivery of the court of appeal judgment in Nairobi CA No. 345 of 2019 Francis Chege Maina & another vs J.M Njenga & Co. advocates & 2 others, which appeal was triggered by the ruling made on 29th April 2019. The Court of Appeal referred back the matter for re-taxation of certain items of the bill of costs guided by specific guidelines issued by the court.
12. The Advocate averred that the Bill of Costs was finally taxed by a Taxing officer who delivered a taxation ruling on 23rd February 2014 and after the ruling, a certificate of taxation was issued. The Advocate maintained that the amount due and payable is Kshs. 10,035,818.30 plus interest at 14% p.a from 10th July 2017 until payment in full as per the Certificate of Costs.
13. In opposition to the Advocate’s Application, the 2nd Respondent filed grounds of opposition dated 8th October 2024 based on the following grounds; -
i. THAT there is a pending Reference dated 7th February 2024 impugning the taxation decision as rendered on 23rd February 2024 by Hon. S. Bett DR. The reference challenges the manner of computation of interest on taxed costs.
ii. THAT in light of the pending reference, no judgment on taxed and certified costs can be entered until the reference is determined.
14. The two applications were canvassed together by way of written submissions. The Advocate’s submissions are dated 15th October 2024. The 1st, 3rd, and 4th Clients filed a joint submission dated 8th October 2024 whilst the 2nd Respondent’s submissions are equally dated 8th October 2023.
Advocate’s submissions
15. On his preliminary objection to the Client’s Application, the Advocate submitted that the application was filed without compliance with the provisions of Paragraph 11(1) of the Advocate Remuneration Order. That the notice required under Paragraph 11 (1) to the Taxing officer is akin to a Notice of Appeal in that a party appealing against a decision of a Taxing Master must file and serve the Notice. According to the Advocate, the failure by the Client to do so is fatal.
16. It was submitted by the Advocate that to the extent that no such notice was filed, the Clients’ application is a non-starter, prematurely filed, and bad in law and ought to be struck off. The Advocate urged this court to dismiss the argument by the Clients’ Counsel that no notice was issued by the client due to the fact that the said Ruling on the Bill of Costs contained the reasons by the Taxing Master.
17. The Advocate cited among others, the case of Njuguna & Partners advocates vs Wood Crest Investment Co. Ltd & 2 others (2021) eKLR in support of the argument that it is mandatory to comply with the requirements of Paragraph 11 of the Advocates Remuneration Order as to the filing of a Notice of Objection to a Taxation Ruling before the filing of a Reference to the High Court.
18. The Advocate maintained that failure to comply with the provisions of Paragraph 11(1) cannot be deemed as a mere technical procedural issue that does not go to the root of the application. That courts have constantly held that neither the Constitution nor the principle of overriding objective is a cave or hideout c for all breaches of the law and in particular, where the law clearly sets out the procedure to be followed as the law or such procedure does not exist in vain.
19. Further, it was submitted by the Advocate that there is no tenable basis laid out as to why the court should interfere with the Taxing Officer’s decision on the issue of interest as she did not misdirect herself at all. That the issue of interest is discretionary to the Taxing Officer and in her wisdom, she granted interest at 14% from 10th July 2017.
20. The Advocate invited the Court to note that the application/Reference by the Client does not challenge the principal sum taxed of Kshs. 10, 035, 818.30, neither does it challenge the rate of interest, but only disputes the period from which the interest thereon is to be computed.
21. The Advocate therefore maintained that the correct date from which the interest is to start running should be from 10th July 2017 as was correctly determined by the taxing master, and not 22 October 2021 as proposed by the Respondents/Clients.
The 1st, 3rd and 4th Client’s submissions
22. For the 1st, 3rd, and 4th Clients/Respondents, they submitted that the Advocate’s Application for judgment under Section 51 of the Advocates Act on the Bill of Costs is premature since there is a reference dated 7th February 2024 against taxation.
23. The Respondents argued that the Taxing Officer committed an error in principle in awarding interest from 10th July 2017, which was the date when the Advocate-Client Bill of Costs was first taxed by the Taxing Officer as this Taxation. According to the Respondents, the taxation having been set aside by the Court of Appeal in its judgment of 22nd October 2021, interest ought to have been computed from 22.10.2021, being the date of the Court of Appeal Judgment or from the date of the fresh taxation of the advocates-client bill of costs.
The 2nd Client’s/Respondent’s submissions
24. The 2nd client in support of the Reference against the Taxation Ruling of 23.02.2024 awarding interest from 10.07.2017 submitted that the Court of Appeal’s Judgment of 21.10.2021 which directed re-taxation had overturned the initial taxation, which included the interest thereon. According to the 2nd Respondent, no legal basis therefore existed for the Hon. DR sitting in re-taxation to again award interest from the date of first taxation, yet the Court of Appeal had set aside the first taxation Ruling.
25. It was, therefore, the 2nd Respondent’s submissions that interest should have been awarded from the date of the second taxation, being, 23.02.2023. The 2nd Respondent maintained that the learned DR erred in principle by making an award of interest computed from an earlier duration, without taking into account the Court of Appeal Judgment that set aside the Taxation Ruling.
26. Citing the case of Mercy Nduta Mwangi t/a Mwangi Keng’ara & Co. Advocates vs Invesco Assurance Co. Ltd, Nairobi HC Civ. Misc. 968 of 2006, [2017] eKLR the Respondent submitted that this Court has the discretion to among others, reduce the period for which interest is payable in any award.
27. Regarding the application seeking entry of judgment on taxed costs, the 2nd Respondent, like the rest of the Respondents herein, submitted that the Advocate’s Application for entry of judgment on the Taxed Costs is premature since there is a pending Reference against the Taxation. The 2nd Respondent cited a case of Lubulellah &Associates Advocates vs N K Brothers Ltd, Nairobi HCCOMM Misc. 52 of 2012, [2014] eKLR in support of this argument.
28. Consequently, the 2nd Respondent urged this court to find the reference dated 7th February 2024 merited and allow the same as prayed, and thereby strike out the Advocate’s Application for entry of Judgment on the Taxed Costs.
Analysis and determination
29. I have carefully considered both applications, the responses thereto, the written submissions and the authorities relied upon and find the following issues arising for determination; -
i. Whether the Reference by the Respondents (Clients) dated 7th February 2024 merited?
ii. Whether the judgment should be entered for the advocate in the sum of Kshs. 10, 035, 818.30 as prayed?
Whether the Reference by the Respondents (Clients) dated 7th February 2024 merited?
30. Regarding the Respondents’/Clients’ Reference dated 7th February 2024, I note that the main complaint by the Clients against the Taxing Master’s Ruling of 23rd February 2024 is that the Taxing Master, in the said Ruling awarded interest from 10th July 2017 when the initial Bill of Costs was taxed.
31. According to the Clients/Respondents, the initial Bill of Costs having been set aside by the Court of Appeal’s Judgment of 22nd October 2021 (which set aside the High Court Ruling of 29th April 2021) meant that the initial taxation had been set aside and therefore any interest on the subsequent Bill of Costs after re-taxation as ordered by the Court of Appeal would only run, either from the date of the Court of Appeal Judgment (as prayed in the Reference) or from the date of the re-taxation, as submitted by the 1st, 3rd & 4th Respondents.
32. In response to the Reference, the Advocate filed a Preliminary Objection dated 12th April 2024 on the basis that the Client did not comply with the provisions of Paragraph 11 of the Advocates (Remuneration) Order as to the filing of a notice to the Taxing Officer.
33. Paragraph 11 of the Advocates Remuneration Order makes provision for the procedure an aggrieved party must adopt and provides that: -
“(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
34. The provisions of Rule 11 (1) of the Advocates Remuneration Order requires any party wishing to object to the decision of the Taxing officer to within fourteen days from the date of the decision, to give notice in writing to the Taxing officer of the items of taxation to which he objects.
35. From the above, it is evident that the Taxing officer is then obligated under Paragraph 11(2) of the ARO to record and forward to the Objector, the reasons for his decision on the items objected to.
36. In the instant case, it is not in dispute that the Client/Respondents did not comply with Paragraph 11 of the ARO as to the requirement of the 14 days' notice to the Taxing officer (from the date of the decision) of the items of taxation objected to and therefore no reasons for the taxing officer’s decision were provided as is required under Paragraph 11(2) of the ARO.
37. Referring to the decision in Elijah Ireri t/a Ireri & Company Advocates vs County Government of Embu [2021] KEHC 2460 (KLR), the Advocate submitted that the failure to seek the reasons for the decision from the Taxing officer and/or attach the reasons renders the application defective.
38. On their part, the Client submitted that the lack of compliance with Paragraph 11 of the ARO cannot of itself make the reference incompetent more so where the reasons appear on the face of the decision.
39. I have carefully reviewed the Reference dated 7th February 2024 and note that the Taxing Master’s Ruling of 23rd February 2024 which is the subject of Reference was not attached to the application by the Clients. The only document attached by the Clients to the Reference Application is the Judgment of the Court of Appeal dated 22nd October 2021.
40. In the circumstances, this Court therefore finds that the failure by the Clients to comply with the mandatory procedure under Paragraphs 11 (1) and (2) of the Advocates Remuneration Order for challenging the Taxing Officer’s decision renders the application defective as it denies this court the opportunity to interrogate the decision as to whether the Taxing officer properly exercised her discretion in taxing the bill of costs.
41. While it is evident from the Reference Application that the Clients are challenging the date from which interest is to be computed, it was necessary for the Clients to obtain from the Taxing Master, written reasons why the taxing master directed that the effective date from which the interest is to run to be 10th July 2017 and not 22nd October 2021 as proposed by the Clients in their Reference. In the absence of the reasons from the Taxing Master, this court cannot effectively determine the Client’s grievances as indicated in the Reference Application.
42. Accordingly, I find that the Notice of Preliminary Objection dated 12th April 2024 by the Advocate is merited and is hereby upheld, with the result that the Respondents’ Chambers Summons (Client’s Reference) dated 7th February 2024 is hereby struck out.
Whether the judgment should be entered for the advocate in the sum of Kshs. 10, 035, 818.30 as prayed?
43. Regarding the Advocate’s application dated 14th June 2024 to have Judgment entered in favour of the Advocate in the sum of Kshs. 10, 035, 818.30 as per the Certificate of Costs dated 28th February 2024, I note that the Clients’ (Respondents’) Objection to the application was solely on the issue that there was a pending Reference against the Bill of Costs.
44. Entry of judgment after taxation is governed by Section 51 (2) of the Advocates Act which provides as follows; -
“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
45. This court having disposed of the Reference (Clients’ Chamber summons application dated 7th February 2024) by striking out the same, it is consequently the finding of this court that there exists no valid reason preventing this Court from entering judgment in favour of the Advocate as per the Certificate of Costs dated 28th February 2024.
Disposition
46. In the premises, the Advocate’s Further Amended Notice of Motion application dated 14th June 2024 is merited and is therefore allowed in the following terms: -
a. Judgment is hereby entered in favour of the Advocate, as against the Respondents jointly and severally, for the sum of Kshs. 10,036,818.30 plus accrued interest thereon at 14% from 10th July 2017 until payment in full.
b. Costs of this application be awarded to the advocate.
47. It is so ordered.
SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22ND DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the Presence of: -
C/A………. Moses
Njenga Jeremy ……….for the Advocate
N/A……………………for the Client