REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
COMMERCIAL & ADMIRALTY DIVISION
HCCOMM MISC. APPL. NO. E028 OF 2023
KEMBOY LAW ADVOCATES…………………...ADVOCATE/RESPONDENT
-VERSUS-
NAROK COUNTY GOVERNMENT………..…………….CLIENT/APPLICANT
RULING
1. Before me is a Notice of Motion application dated 31st March, 2023 brought under the provisions of Article 50(1) of the Constitution of Kenya 2010, Paragraph 12, 13A of the Advocates (Remuneration) Order, 2009, and Sections 1A, 1B & 3A of the Civil Procedure Act. The client is seeking the following orders -
i) Spent;
ii) That the Court be pleased to issue a temporary stay of taxation of the bill of costs pending the hearing and determination of this application;
iii) That this Honourable Court be pleased to make any such order and/or orders as it may deem just and appropriate in the circumstances; and
iv) That the costs of this application be provided for.
2. The application is premised on the grounds on the face of the Motion and is supported by affidavits sworn by John Maiyiani Tuya, the client’s then Acting County Secretary, Narok County Government on 11th April, 2023 and 27th August, 2023. In opposition thereto, the Advocate filed a replying and further affidavit sworn by Julius K. Kemboy, learned Counsel for the Advocate on 1st August, 2023 and 22nd January, 2024, respectively.
3. The instant application was canvassed by way of written submissions which were highlighted on 24th January, 2024. The client’s submissions were filed on 11th September, 2023 by the law firm of Maina Ngaruiya & Company Advocates, whereas the Advocates submissions were filed by the law firm of Kemboy Law Advocates on 23rd January, 2024.
4. Mr. Osongo, learned Counsel for the client submitted that so far, the Advocate has filed a total of 90 bills of costs in various Courts within the Republic of Kenya seeking costs of over Kshs.1,640,566,640.00. He contended that so far, the client has paid the Advocate an amount exceeding Kshs.710,177,874.00/= for the legal services rendered on the matters it handled. Thus, the bill of costs filed by the Advocate only stand to expose the client to lose public funds. He averred that the relationship between the client and the Advocate was created though a Legal Services Agreement which the Advocate has not only failed to disclose but also violated by filing the said bills of costs. He deposed that the ends of justice would be best served if taxation of the bills of costs filed by the Advocate are temporarily stayed, so as to enable the client reconcile its books of accounts and do a thorough and comprehensive verification of payments made to the said Advocate.
5. Counsel relied on the case of Tom Ojienda & Associates v Mumias Sugar Company Limited & another [2018] eKLR and stated that the client herein is a public body whose interest are intricately interwoven with public interest, being the protection of public funds. He submitted that the client has sufficiently demonstrated that it would suffer substantial loss if taxation of the bill of costs in this case is not temporarily stayed. He referred to the case of Harjot Singh Dhanjal v Attorney General & another [2021] eKLR and stated that the application herein has been filed expeditiously. In submitting that the taxation of the Advocates bill of costs in this case should be stayed to avoid piecemeal taxation since the arbitral proceedings that gave rise to these taxation proceedings have not yet been finalized, Counsel cited the case of Commercial Bank of Africa v Lalji Karsan Rabadia & 2 Others [2012] eKLR quoted with authority by the Court in Moses Wachira v Niels Bruel & 2 others [2016] eKLR.
6. Mr. Kere, learned Counsel for the Advocate relied on the Court of Appeal case of Otieno Ragot & Company Advocates v Kenya Airports Authority [2015] eKLR and C.B. Gor & Gor v Oriental Commercial Bank Limited (formerly known as Delphis Bank Limited) [2018] eKLR and submitted that this Court does not have jurisdiction to stay taxation of a bill of costs before a Taxing Officer. He further submitted that before this Court can consider whether it is just and equitable to grant an order for stay of proceedings, it has to be guided by laid down principles, and in doing so, the Court is called upon to weigh the competing interests of each party and make orders that meet the ends of justice. He stated that it is now well settled that stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt, ought not to be allowed to continue.
7. Mr. Kere stated that in view of the above, there is no reason as to why the taxation herein should be stayed pending an alleged audit, yet the client has already asserted that it has paid the Advocate amounts exceeding Kshs.770,000,000/= or Kshs.710,177,874.00 for conduct of various legal matters. He also stated that to now claim that it wants to undertake an audit is an admission that its allegation was spurious and plucked from the air. In view of the above, Counsel asserted that the client cannot approbate and reprobate. He submitted that the Advocate has filed several other bills of costs against the client and is in the process of filing more, thus the client is at liberty to deploy the findings of its alleged audit in opposition to those bills of costs. He expressed the view that taxation of the Bill of Costs herein will not prejudice the said audit in any way.
8. Counsel for the Advocate argued that the client has not given timelines within which the said audit will be undertaken. Further, that the dispute between the Advocate and the client arose way back in the year 2022 and the client has not demonstrated what challenges it faced in undertaking and completing the audit fifteen months down the line. He also argued that it has been a year since the Advocate filed the bill of costs in this matter and nine months since it filed the instant application, but the client has not shown what steps it has taken to commence the said audit.
9. On whether the client will suffer substantial loss in the event the instant application is disallowed, Mr. Kere submitted that taxation is a routine process aimed at ensuring fairness and transparency in the determination of legal costs, therefore the client stands to suffer no loss in the event the orders sought are not granted. He contended that the client has not tendered any evidence to demonstrate the loss it will suffer if the Advocate’s bill of costs is taxed.
ANALYSIS AND DETERMINATION.
10. I have considered the instant application, the grounds on the face of it and the affidavits filed in support thereof. I have also taken into account the replying and further affidavits by the Advocate as well as the written submissions by Counsel for the parties. The issues that arise for determination are-
i) Whether this Court has jurisdiction to entertain the instant application;
ii) Whether an order for stay of taxation of the applicant’s bill of costs dated 18th January 2023 should issue.
11. The client in its affidavit in support of the instant application deposed that the Advocate filed its bill of costs dated 18th January, 2023 seeking legal costs for representing the client in Miscellaneous Application No. 59 of 2017 between Prof. Tom Ojienda & Associates Advocates and the County Government of Narok. Mr. Tuya averred that the client has already paid Kshs.770,000,000/= to the Advocate as legal fees in various litigation matters including the matters in which the Advocate/litigant is seeking costs.
12. He further averred that having been paid its legal fees before it ceased acting for the client, the Advocate cannot seek more costs by filing the bill of costs dated 18th January, 2023. It was stated by the client that in the replying affidavit in opposition to the aforementioned bill of costs it averred that the Advocate had received Kshs.770,000,000/=. The Advocate responded to the said averment by stating that it has not received any monies from the County Government of Narok, and it is necessary to stay taxation proceedings pending an audit of the County’s financial records and accounts, so as to ascertain the correct position.
13. The Advocate in its replying affidavit averred that the only ground in support of the instant application is that the client intends to undertake an audit of the fees remitted to the law firm, but at paragraphs 4, 14 & 15 of its replying affidavit in opposition to the Advocate’s bill of costs dated 18th January, 2023, the client alleged that it has paid the advocate amounts exceeding Kshs.770,000,000/= for conduct of various legal matters. The said allegation was however contested in the Advocate’s further affidavit, thus it will fall for determination by the Deputy Registrar.
14. It was deposed by Mr. Kemboy that this Court has no jurisdiction to stay taxation of a bill of costs that is pending taxation in the first instance before a Taxing Officer. He further stated that it is trite law that taxation proceedings are the only way of settling a dispute on costs and legal fees due to an Advocate, where the Advocate and the client cannot agree following completion of work or the withdrawal of instructions.
15. In a rejoinder, the client contended that the Advocate has filed a total of 90 bills of costs in various Courts within the Republic of Kenya seeking costs of over Kshs.1,640,566.640/=. The client averred that it is however unfortunate that in doing so, the Advocate is purporting to tax bills that have already been settled by the client, with the Advocate having received Kshs.710,177,874/= from the client.
16. Mr. Tuya asserted that there existed no other relationship between the parties herein to warrant the aforementioned payments by the client save for an agreement for provision of Legal Services. He stated that by filing the said bill of costs, the Advocate jumped the gun and acted in violation of the agreement between the parties herein since it did not first issue it with a fee note. He further stated that in any event, the Advocate’s name does not feature in the client’s report for pending bills as at March 2020.
17. The Advocate in its further affidavit deposed that at paragraph 5 of the client’s supplementary affidavit, the client now alleges that it has paid the law firm a total of Kshs.710,177,874.00. In support of this averment, the client produced two sets of documents titled a summary of all payments and an assortment of various payment vouchers. It however failed to disclose that the Advocate had represented it and its predecessors, the Transmara County Council and the County Council of Narok in various legal matters for an aggregate period of about 20 years. That since then, a number of matters were concluded but legal fees remain due and owing, and as at the time of terminating the Advocate-Client relationship, the client was handling over 110 matters on the client’s behalf for which legal fees have not been paid.
18. Mr. Kemboy averred that from the foregoing, it is evident that the client has not adduced any evidence in support of the claim that it has since paid the Advocate a total of Kshs.710,177,874.00. He urged this Court to take judicial notice of the fact that all payments and expenses done and incurred by any County Government, can only be effected through the Integrated Financial Management Information System (IFMIS), which guarantees that each expense made to any supplier is traceable and logged, then it generates a unique printout that will show the movement of funds from the client’s account at the Central Bank of Kenya to the supplier’s account for accountability purposes. In addition, IFMIS generates payment advices for every payment made as well as all the taxes withheld and transmitted to the Kenya Revenue Authority (KRA) once any payment is done.
19. It was stated by the Advocate that by a forwarding letter dated 12th October, 2022, it forwarded a fee note of the same date to the client for legal fees with respect to an arbitration dispute between Associated Construction Limited and Narok County Government, but the said fee note has never been settled to date.
Whether this Court has jurisdiction to entertain the instant application
20. In the case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd (supra) it was held as follows on the issue of jurisdiction -
“…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
21. It was submitted by the Advocate that that this Court does not have jurisdiction to stay taxation of a bill of cost before a Taxing Officer such as is the case herein. It is not disputed that the Advocate has represented the client’s interests in a number of suits over the years including the arbitral proceedings that gave rise to the bill of costs filed by the Advocate in this suit. The Advocate represented the client in arbitral proceedings between it and Associated Construction Co. Ltd v Narok County Government before it ceased from acting for the client. The Advocate contended that it then served the client with a fee note dated 12th October, 2022 but the said fee note elicited no response, thus prompting it to file a bill of costs dated 18th January, 2023 against the client seeking fees for services rendered in the arbitral proceedings.
22. It is evident from the pleadings filed that parties filed their respective pleadings and written submissions before the Taxing Officer in support of, and in opposition to the Advocate’s bill of costs dated 18th January, 2023, thus what is pending is a ruling on the same. It is now well settled that matters taxation of costs is the reserve of the Taxing Officer who derives her jurisdiction from the provisions of Rule 13 of the Advocates Remuneration Order. The Taxing Officer’s jurisdiction is not only limited to the taxation of a bill of costs before her, as can be seen from the provisions of Rule 13A of the Advocates Remuneration order which states as hereunder –
For the purpose of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.
23. In the application before me, the client is seeking stay of taxation of the Advocate’s bill of costs dated 18th January, 2023 pending an audit of the client’s financial records and accounts, which will demonstrate that the Advocate has been duly paid his fees for the legal services rendered to the client. In my considered view, these proceedings fit under the provisions of Rule 13A of the Advocates Remuneration Order reproduced in the preceding paragraph, since the audit to be carried out by the client is meant to assist the Taxing Officer in determining the dispute between the parties herein. In addition, it is noteworthy that the instant application has been filed under the provisions of Rule 13A of the Advocates Remuneration Order, among other provisions of the law.
24. The High Court’s jurisdiction in matters taxation is very limited and can only be invoked under Rule 11 of the Advocates Remuneration Order by way of a Reference against the decision of a Taxing Officer, under Section 48 of the Advocates Act where an Advocate files a suit for recovery of costs due to him where there is an agreement on fees in place, and under Rule 12 of the Advocates Remuneration Order where the parties by consent have agreed that a matter arising from the taxation of a bill of costs be referred for the High Court’s opinion. Since the instant application has also been filed under the provisions of Rule 12 of the Advocates Remuneration Order, it is clear that this Court’s jurisdiction has been invoked pursuant to the provisions thereunder which state that –
“With the consent of both parties, the taxing officer may refer any matter in dispute arising out of the taxation of a bill for the opinion of the High Court. The procedure for such reference shall follow that of a case stated but shall be to a judge in chambers.”
25. From the above excerpt, it is clear that for the provisions of Rule 12 of the Advocates Remuneration Order to come into play, there has to be a consent of both parties i.e. the Advocate and the client. From the record, I note that this matter came up before the Taxing Officer on 7th July, 2023 when Counsel for the Advocate sought for a ruling date on taxation of its bill of costs dated 18th January, 2023, and Counsel for the client sought for orders that the file be placed before the Judge in view of the fact that the client had filed the application herein. Subsequently, on 17th July, 2023, the Taxing Officer gave directions to the effect that this file be placed before me. There is no evidence of a consent between the parties herein to have the instant application determined by the High Court that has been tendered by the client, or at the very least an allegation that it got into a consent with the Advocate to have the instant application determined by the High Court.
26. To this end, I am bound by the Court of Appeal decision in the case of Otieno Ragot & Company Advocates v Kenya Airports Authority [2015] eKLR where it was held that –
“In the case of Sharma vs. Uhuru Highway Development Ltd [2001] 2 EA 531 whose facts bears striking similarity with this matter, an advocate after rendering services to his client forwarded a fee note to his client. It was not paid. The advocate commenced a miscellaneous civil suit in the High Court submitting his itemized advocate/client bill of costs for taxation. The taxation was then scheduled before the taxing officer. Before the taxation was done, the client applied to the High Court for stay of the taxation and for the striking out of the Miscellaneous Cause. When the matter reached this Court, it was held that the proceedings before the High Court were a nullity as the matter had already been fixed for taxation before the Deputy Registrar and there were no grounds conferring jurisdiction on the judge to hear the matter and no steps had been taken to divest the Deputy Registrar of his jurisdiction. This Court was clear that in those circumstance the High Court did not have jurisdiction to entertain the application for stay.”
27. In view of the above guiding authority, this Court finds that it has no jurisdiction to determine the instant application. I down my tools. The application dated 31st March, 2023 is struck out with costs to the Advocate.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 19th day of April, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Maina Ngaruiya for the client/applicant
Mr. Kere for the Advocate/respondent
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT MOMBASA
COMMERCIAL & ADMIRALTY DIVISION
HCCOMM MISC. APPL. NO. E028 OF 2023
KEMBOY LAW ADVOCATES…………………...ADVOCATE/RESPONDENT
-VERSUS-
NAROK COUNTY GOVERNMENT………..…………….CLIENT/APPLICANT
RULING
1. Before me is a Notice of Motion application dated 31st March, 2023 brought under the provisions of Article 50(1) of the Constitution of Kenya 2010, Paragraph 12, 13A of the Advocates (Remuneration) Order, 2009, and Sections 1A, 1B & 3A of the Civil Procedure Act. The client is seeking the following orders -
i) Spent;
ii) That the Court be pleased to issue a temporary stay of taxation of the bill of costs pending the hearing and determination of this application;
iii) That this Honourable Court be pleased to make any such order and/or orders as it may deem just and appropriate in the circumstances; and
iv) That the costs of this application be provided for.
2. The application is premised on the grounds on the face of the Motion and is supported by affidavits sworn by John Maiyiani Tuya, the client’s then Acting County Secretary, Narok County Government on 11th April, 2023 and 27th August, 2023. In opposition thereto, the Advocate filed a replying and further affidavit sworn by Julius K. Kemboy, learned Counsel for the Advocate on 1st August, 2023 and 22nd January, 2024, respectively.
3. The instant application was canvassed by way of written submissions which were highlighted on 24th January, 2024. The client’s submissions were filed on 11th September, 2023 by the law firm of Maina Ngaruiya & Company Advocates, whereas the Advocates submissions were filed by the law firm of Kemboy Law Advocates on 23rd January, 2024.
4. Mr. Osongo, learned Counsel for the client submitted that so far, the Advocate has filed a total of 90 bills of costs in various Courts within the Republic of Kenya seeking costs of over Kshs.1,640,566,640.00. He contended that so far, the client has paid the Advocate an amount exceeding Kshs.710,177,874.00/= for the legal services rendered on the matters it handled. Thus, the bill of costs filed by the Advocate only stand to expose the client to lose public funds. He averred that the relationship between the client and the Advocate was created though a Legal Services Agreement which the Advocate has not only failed to disclose but also violated by filing the said bills of costs. He deposed that the ends of justice would be best served if taxation of the bills of costs filed by the Advocate are temporarily stayed, so as to enable the client reconcile its books of accounts and do a thorough and comprehensive verification of payments made to the said Advocate.
5. Counsel relied on the case of Tom Ojienda & Associates v Mumias Sugar Company Limited & another [2018] eKLR and stated that the client herein is a public body whose interest are intricately interwoven with public interest, being the protection of public funds. He submitted that the client has sufficiently demonstrated that it would suffer substantial loss if taxation of the bill of costs in this case is not temporarily stayed. He referred to the case of Harjot Singh Dhanjal v Attorney General & another [2021] eKLR and stated that the application herein has been filed expeditiously. In submitting that the taxation of the Advocates bill of costs in this case should be stayed to avoid piecemeal taxation since the arbitral proceedings that gave rise to these taxation proceedings have not yet been finalized, Counsel cited the case of Commercial Bank of Africa v Lalji Karsan Rabadia & 2 Others [2012] eKLR quoted with authority by the Court in Moses Wachira v Niels Bruel & 2 others [2016] eKLR.
6. Mr. Kere, learned Counsel for the Advocate relied on the Court of Appeal case of Otieno Ragot & Company Advocates v Kenya Airports Authority [2015] eKLR and C.B. Gor & Gor v Oriental Commercial Bank Limited (formerly known as Delphis Bank Limited) [2018] eKLR and submitted that this Court does not have jurisdiction to stay taxation of a bill of costs before a Taxing Officer. He further submitted that before this Court can consider whether it is just and equitable to grant an order for stay of proceedings, it has to be guided by laid down principles, and in doing so, the Court is called upon to weigh the competing interests of each party and make orders that meet the ends of justice. He stated that it is now well settled that stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt, ought not to be allowed to continue.
7. Mr. Kere stated that in view of the above, there is no reason as to why the taxation herein should be stayed pending an alleged audit, yet the client has already asserted that it has paid the Advocate amounts exceeding Kshs.770,000,000/= or Kshs.710,177,874.00 for conduct of various legal matters. He also stated that to now claim that it wants to undertake an audit is an admission that its allegation was spurious and plucked from the air. In view of the above, Counsel asserted that the client cannot approbate and reprobate. He submitted that the Advocate has filed several other bills of costs against the client and is in the process of filing more, thus the client is at liberty to deploy the findings of its alleged audit in opposition to those bills of costs. He expressed the view that taxation of the Bill of Costs herein will not prejudice the said audit in any way.
8. Counsel for the Advocate argued that the client has not given timelines within which the said audit will be undertaken. Further, that the dispute between the Advocate and the client arose way back in the year 2022 and the client has not demonstrated what challenges it faced in undertaking and completing the audit fifteen months down the line. He also argued that it has been a year since the Advocate filed the bill of costs in this matter and nine months since it filed the instant application, but the client has not shown what steps it has taken to commence the said audit.
9. On whether the client will suffer substantial loss in the event the instant application is disallowed, Mr. Kere submitted that taxation is a routine process aimed at ensuring fairness and transparency in the determination of legal costs, therefore the client stands to suffer no loss in the event the orders sought are not granted. He contended that the client has not tendered any evidence to demonstrate the loss it will suffer if the Advocate’s bill of costs is taxed.
ANALYSIS AND DETERMINATION.
10. I have considered the instant application, the grounds on the face of it and the affidavits filed in support thereof. I have also taken into account the replying and further affidavits by the Advocate as well as the written submissions by Counsel for the parties. The issues that arise for determination are-
i) Whether this Court has jurisdiction to entertain the instant application;
ii) Whether an order for stay of taxation of the applicant’s bill of costs dated 18th January 2023 should issue.
11. The client in its affidavit in support of the instant application deposed that the Advocate filed its bill of costs dated 18th January, 2023 seeking legal costs for representing the client in Miscellaneous Application No. 59 of 2017 between Prof. Tom Ojienda & Associates Advocates and the County Government of Narok. Mr. Tuya averred that the client has already paid Kshs.770,000,000/= to the Advocate as legal fees in various litigation matters including the matters in which the Advocate/litigant is seeking costs.
12. He further averred that having been paid its legal fees before it ceased acting for the client, the Advocate cannot seek more costs by filing the bill of costs dated 18th January, 2023. It was stated by the client that in the replying affidavit in opposition to the aforementioned bill of costs it averred that the Advocate had received Kshs.770,000,000/=. The Advocate responded to the said averment by stating that it has not received any monies from the County Government of Narok, and it is necessary to stay taxation proceedings pending an audit of the County’s financial records and accounts, so as to ascertain the correct position.
13. The Advocate in its replying affidavit averred that the only ground in support of the instant application is that the client intends to undertake an audit of the fees remitted to the law firm, but at paragraphs 4, 14 & 15 of its replying affidavit in opposition to the Advocate’s bill of costs dated 18th January, 2023, the client alleged that it has paid the advocate amounts exceeding Kshs.770,000,000/= for conduct of various legal matters. The said allegation was however contested in the Advocate’s further affidavit, thus it will fall for determination by the Deputy Registrar.
14. It was deposed by Mr. Kemboy that this Court has no jurisdiction to stay taxation of a bill of costs that is pending taxation in the first instance before a Taxing Officer. He further stated that it is trite law that taxation proceedings are the only way of settling a dispute on costs and legal fees due to an Advocate, where the Advocate and the client cannot agree following completion of work or the withdrawal of instructions.
15. In a rejoinder, the client contended that the Advocate has filed a total of 90 bills of costs in various Courts within the Republic of Kenya seeking costs of over Kshs.1,640,566.640/=. The client averred that it is however unfortunate that in doing so, the Advocate is purporting to tax bills that have already been settled by the client, with the Advocate having received Kshs.710,177,874/= from the client.
16. Mr. Tuya asserted that there existed no other relationship between the parties herein to warrant the aforementioned payments by the client save for an agreement for provision of Legal Services. He stated that by filing the said bill of costs, the Advocate jumped the gun and acted in violation of the agreement between the parties herein since it did not first issue it with a fee note. He further stated that in any event, the Advocate’s name does not feature in the client’s report for pending bills as at March 2020.
17. The Advocate in its further affidavit deposed that at paragraph 5 of the client’s supplementary affidavit, the client now alleges that it has paid the law firm a total of Kshs.710,177,874.00. In support of this averment, the client produced two sets of documents titled a summary of all payments and an assortment of various payment vouchers. It however failed to disclose that the Advocate had represented it and its predecessors, the Transmara County Council and the County Council of Narok in various legal matters for an aggregate period of about 20 years. That since then, a number of matters were concluded but legal fees remain due and owing, and as at the time of terminating the Advocate-Client relationship, the client was handling over 110 matters on the client’s behalf for which legal fees have not been paid.
18. Mr. Kemboy averred that from the foregoing, it is evident that the client has not adduced any evidence in support of the claim that it has since paid the Advocate a total of Kshs.710,177,874.00. He urged this Court to take judicial notice of the fact that all payments and expenses done and incurred by any County Government, can only be effected through the Integrated Financial Management Information System (IFMIS), which guarantees that each expense made to any supplier is traceable and logged, then it generates a unique printout that will show the movement of funds from the client’s account at the Central Bank of Kenya to the supplier’s account for accountability purposes. In addition, IFMIS generates payment advices for every payment made as well as all the taxes withheld and transmitted to the Kenya Revenue Authority (KRA) once any payment is done.
19. It was stated by the Advocate that by a forwarding letter dated 12th October, 2022, it forwarded a fee note of the same date to the client for legal fees with respect to an arbitration dispute between Associated Construction Limited and Narok County Government, but the said fee note has never been settled to date.
Whether this Court has jurisdiction to entertain the instant application
20. In the case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd (supra) it was held as follows on the issue of jurisdiction -
“…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
21. It was submitted by the Advocate that that this Court does not have jurisdiction to stay taxation of a bill of cost before a Taxing Officer such as is the case herein. It is not disputed that the Advocate has represented the client’s interests in a number of suits over the years including the arbitral proceedings that gave rise to the bill of costs filed by the Advocate in this suit. The Advocate represented the client in arbitral proceedings between it and Associated Construction Co. Ltd v Narok County Government before it ceased from acting for the client. The Advocate contended that it then served the client with a fee note dated 12th October, 2022 but the said fee note elicited no response, thus prompting it to file a bill of costs dated 18th January, 2023 against the client seeking fees for services rendered in the arbitral proceedings.
22. It is evident from the pleadings filed that parties filed their respective pleadings and written submissions before the Taxing Officer in support of, and in opposition to the Advocate’s bill of costs dated 18th January, 2023, thus what is pending is a ruling on the same. It is now well settled that matters taxation of costs is the reserve of the Taxing Officer who derives her jurisdiction from the provisions of Rule 13 of the Advocates Remuneration Order. The Taxing Officer’s jurisdiction is not only limited to the taxation of a bill of costs before her, as can be seen from the provisions of Rule 13A of the Advocates Remuneration order which states as hereunder –
For the purpose of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.
23. In the application before me, the client is seeking stay of taxation of the Advocate’s bill of costs dated 18th January, 2023 pending an audit of the client’s financial records and accounts, which will demonstrate that the Advocate has been duly paid his fees for the legal services rendered to the client. In my considered view, these proceedings fit under the provisions of Rule 13A of the Advocates Remuneration Order reproduced in the preceding paragraph, since the audit to be carried out by the client is meant to assist the Taxing Officer in determining the dispute between the parties herein. In addition, it is noteworthy that the instant application has been filed under the provisions of Rule 13A of the Advocates Remuneration Order, among other provisions of the law.
24. The High Court’s jurisdiction in matters taxation is very limited and can only be invoked under Rule 11 of the Advocates Remuneration Order by way of a Reference against the decision of a Taxing Officer, under Section 48 of the Advocates Act where an Advocate files a suit for recovery of costs due to him where there is an agreement on fees in place, and under Rule 12 of the Advocates Remuneration Order where the parties by consent have agreed that a matter arising from the taxation of a bill of costs be referred for the High Court’s opinion. Since the instant application has also been filed under the provisions of Rule 12 of the Advocates Remuneration Order, it is clear that this Court’s jurisdiction has been invoked pursuant to the provisions thereunder which state that –
“With the consent of both parties, the taxing officer may refer any matter in dispute arising out of the taxation of a bill for the opinion of the High Court. The procedure for such reference shall follow that of a case stated but shall be to a judge in chambers.”
25. From the above excerpt, it is clear that for the provisions of Rule 12 of the Advocates Remuneration Order to come into play, there has to be a consent of both parties i.e. the Advocate and the client. From the record, I note that this matter came up before the Taxing Officer on 7th July, 2023 when Counsel for the Advocate sought for a ruling date on taxation of its bill of costs dated 18th January, 2023, and Counsel for the client sought for orders that the file be placed before the Judge in view of the fact that the client had filed the application herein. Subsequently, on 17th July, 2023, the Taxing Officer gave directions to the effect that this file be placed before me. There is no evidence of a consent between the parties herein to have the instant application determined by the High Court that has been tendered by the client, or at the very least an allegation that it got into a consent with the Advocate to have the instant application determined by the High Court.
26. To this end, I am bound by the Court of Appeal decision in the case of Otieno Ragot & Company Advocates v Kenya Airports Authority [2015] eKLR where it was held that –
“In the case of Sharma vs. Uhuru Highway Development Ltd [2001] 2 EA 531 whose facts bears striking similarity with this matter, an advocate after rendering services to his client forwarded a fee note to his client. It was not paid. The advocate commenced a miscellaneous civil suit in the High Court submitting his itemized advocate/client bill of costs for taxation. The taxation was then scheduled before the taxing officer. Before the taxation was done, the client applied to the High Court for stay of the taxation and for the striking out of the Miscellaneous Cause. When the matter reached this Court, it was held that the proceedings before the High Court were a nullity as the matter had already been fixed for taxation before the Deputy Registrar and there were no grounds conferring jurisdiction on the judge to hear the matter and no steps had been taken to divest the Deputy Registrar of his jurisdiction. This Court was clear that in those circumstance the High Court did not have jurisdiction to entertain the application for stay.”
27. In view of the above guiding authority, this Court finds that it has no jurisdiction to determine the instant application. I down my tools. The application dated 31st March, 2023 is struck out with costs to the Advocate.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 19th day of April, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Maina Ngaruiya for the client/applicant
Mr. Kere for the Advocate/respondent
Ms B. Wokabi – Court Assistant.