KIMETO AND ASSOCIATES VS KNIGHT MUHONJA MAGODO AND GLADYS NEKESA PETER

1.Before this court is the Chamber Summons dated 2^nd September 2024 seeking the following orders;

1. Spent.
2. Spent.
3. THAT the Honourable Court be pleased to join the intended Applicant, being a co- administrator of the estate of the deceased as an Applicant in the instant proceedings.
4. THAT pending the hearing and determination of this application and /or further orders, the Honourable Court be pleased to stay the execution of the orders issued on 28^th August 2024 allowing the taxed costs of Kshs. 16,886,656/= from the Estate of the deceased in HCFP&A No. 1251 A of 2019, in the matter of the Estate of Musa Magodo Keya.
5. THAT the consent dated 6^th August 2024 and the subsequent orders of Honourable Lesootia (Deputy Registrar) issued on 28^th August 2024 adopting the same be and are hereby set aside.
6. THAT upon granting prayer (5) above, the Honourable Court be pleased to allow this reference and remit the Bill of Costs dated 1^st August 2024 for re-taxation by another taxing officer other than Honourable Lesootia (Deputy Registrar)
7. THAT upon grant of prayer (5) above, the Honourable Court be pleased to grant leave to the Applicant to file her response to the Bill of Costs dated 1^st August 2024.
8. THAT upon grant of prayer (5) above, an order be and is hereby issued to the effect that any amount taxed and/or any costs due and owing to the Advocates ought to be borne by the Respondents/Clients in their individual capacities and/or out of their portion of the estate upon distribution.
9. THAT costs of this application be provided for.

1. The Summons was premised upon Part 3 Rule 1 of the High Court ( Practice and Procedure) Rules, Rule 49 and 73 of the Probate and Administration Rules, 1980, Rules 11 (1) and (2) of the Advocates Remuneration Order and was supported by the Affidavit of even date sworn by the applicant, ALICE INGAIZA MAGODO and a Further Affidavit sworn on 25^th January  2025. 
2. The reference is opposed. The Respondent/Advocate  filed a Replying Affidavit dated 14^th October 2024 and Grounds of Opposition of even date. She challenged the jurisdiction of this court to hear the reference which was filed by a litigant who lacks locus standi to move this court.
3. It is the Applicant’s case that she is the co-administrator of the estate of the deceased. That on 28^th August 2024, Hon. Lesootia (DR, Family Division) adopted a consent dated 6^th August 2024 to the effect that Kshs. 16,886,656/= was to be paid to the firm of Antony Musili & Company Advocates from the estate. She denied that the firm of Musili & Company Advocates represented the estate in succession proceedings as there was no notice of appointment. She therefore argued that the consent was fraudulent. She averred that she was not served with the bill of costs dated 1^st August 2024 or Notice of Taxation. She was aggrieved by the orders of 28^th August 2024 and she wrote a letter to the Deputy Registrar to express her concerns. She argued that it was important that she and other beneficiaries of the estate be served with the bill of costs.  
4. The Respondent’s case is the firm represented the 1^st and 2^nd Respondents in Milimani High Court Succession No. 1251A of 2019. The Respondents thereafter engaged the firm of Anthony Musili & Co. Advocates. She filed a Bill of Costs dated 1^st August 2024 for the sum of Kshs. 16,886, 656 and a Notice of Taxation and served it on all parties. She also served the applicant through the firm of Muga & Muga Company Advocates. The Respondents were in agreement with the bill of costs and the parties entered into a consent dated 6^th August 2024. She argued that the applicant lacks the locus standi to oppose the bill of costs because there is no existing relationship between her and the law firm. She avers that the applicant is an objector in the succession proceedings in the High Court and not an administrator of the estate of the deceased. 

APPLICANT’S SUBMISSIONS.

1. The Applicant framed two issues to be determined by this court:
2. Whether the applicant has locus standi to challenge the bill of costs and all consequential orders arising thereof.
3. Whether the consent dated 6^th August 2024 is invalid and ought to be set aside.
4. On the first issue, she submitted that she is a legal representative of the estate of the deceased and is mandated under Section 83 of the Law of Succession Act to carry out responsibilities and ensure that the estate is not wasted. She relied on the decision of John Kipkorir Rono v Charles Kipkoech Rono & 5 others & W.K. Ngenoh T/A W.K Ngenoh Lessan & Company Advocates[2019] eKLR where the court held that a beneficiary had an interest in the taxed bill of costs as the costs were payable from the estate of the deceased.
5. On the second issue, it was her submission that the consent is invalid because it was executed by an advocate who was not properly on record for the Respondents. That failure to file a Notice of Appointment before entering the consent and filing the bill of costs voids the consent order. Reliance was placed on the decision of Republic v Busia Senior Resident Magistrate’s Court & Another Ex parte David Henry Muchelule & Another [2004] eKLR.

RESPONDENT’S  SUBMISSIONS.

1. The Advocate’s submissions are dated 22^nd January 2025. The Respondent framed the following as issues to be determined by this court:
2. Whether an advocate client relationship exists between the applicant/firm and the applicant?
3. What is the jurisdiction of the taxing officer?
4. Does the applicant have the requisite locus standi to file this application?
5. Was the Bill of Costs and Notice of Taxation properly served on all parties?
6. On the first issue, relying on the decisions of Selle vs Associated Motor Boat Company (1968) EA 123 and Wilfred N. Konosi & Co. Advocates vs Flamco Limited [2017] eKLR, it was submitted that an advocate/client relationship does not exist between the applicant and the advocate. Further, that an attempt by the applicant to participate in these taxation proceedings is a violation of the Advocate Client Privilege which is prohibited under Section 134 (1) of the Evidence Act.

1. On the second issue, it was submitted that the Taxing Officer has the discretion to tax the bill. The Applicant was duly served through her advocates but she failed to appear before the taxing officer to raise any issue. She submitted that Paragraph 76 of the Advocates Remuneration Order allows the taxing officer to  proceed ex-parte where a party fails to enter appearance. Further, that Rule  57 of the Advocates and Remuneration Order grants the taxing officer power to accept agreements on amounts of costs agreed by parties or reject the same.
2. On the third issue, it was counsel’s submission that having failed to prove that there is an existing advocate, client relationship between the applicant and the advocate, the applicant therefore lacks locus standi to file this application. she argued that where a person lacks locus standi, the court ceases to have jurisdiction over the matter. Reliance was placed on the decision of William Amondi Ajigo vs Daniel Okoth Opany KE ELC 1711 KLR.
3. Lastly, counsel submitted that the taxing officer was satisfied that all parties were served and thus proceeded to tax the bill. 

ANALYSIS AND DETERMINATION

1. I have considered the application, the supporting affidavit, the parties’ submissions before me and the authorities cited by both parties. There are several issues arising from this application. First, I will deal with the issue whether the applicant has locus standi to file this application, as if I find that the applicant has no locus standi, I will down my tools.
2. The Applicant is an Objector and not an Administrator in the Succession Cause the subject of this taxation. She has not rebutted this assertion by the Respondent Advocate. She is a beneficiary to the Estate.  As a beneficiary of the estate of the deceased, she certainly has an interest in the taxed Bill of Costs as the costs are payable from the estate of the deceased before distribution of the net assets to beneficiaries including herself.  This position clearly comes out of section 83 of the Law of Succession Act (Cap. 160) on the duties of a personal representatives which states interalia as follows-

83.  A personal representative shall have the following duties

a)  ………………………………………………

b)  ……………………………………………….

c) To pay out of the estate of the deceased, all expenses of obtaining the grant of representation, and all other reasonable expenses of administration including estate duty; if any.

1. It follows therefore, the share of the   applicant and the other beneficiaries will be affected by the amount of costs, as costs will be paid from the estate before the net amount is distributed to them.
2. That Notwithstanding she cannot successfully mount a challenge against the bill as taxed as there does not exist a client-advocate relationship between her and Counsel, further the judgment was entered pursuant to a consent recorded between the Advocate and Counsel for the Administrators in the Succession Cause. The record shows that Anthony Musili & Co. Advocates are properly on record having filed a notice of change. In light of the foregoing having found that the Applicant lacks the locus standi to present this application, the orders that must follow is that the Application is dismissed in its entirety. 
3. The Applicant will pay the costs of this Application assessed at Kshs 25000 and payable within 30 days.

DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, AT NAIROBI THIS 7^th   DAY OF MARCH, 2025.