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JudgmentKIPLAGAT & KIDUI ADVOCATES VS FRANCIS MURIGH KARIUKI5 min read

KIPLAGAT & KIDUI ADVOCATES VS FRANCIS MURIGH KARIUKI

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

MISC. CIVIL CAUSE NO. E025 OF 2022

IN THE MATTER OF THE ADVOCATES ACT

AND

IN THE MATTER OF THE ADVOCATE-CLIENT BILL OF COSTS ARISING FROM REPRESENTATION/LEGAL SERVICES IN THE MATTER OF A CIVIL DIPUTE

BETWEEN

FRANCIS MURIGHI KARIUKI V LAND REGISTRAR KAJIADO & 2 OTHERS

BETWEEN

KIPLAGAT & KIDUI ADVOCATES…..ADVOCATE/APPLICANT/RESPONDENT

AND

FRANCIS MURIGHI KARIUKI……………CLIENT/RESPONDENT/APPLICANT

RULING

  1. This Ruling relates to a Notice of Motion dated 7th February 2023 by Kiplagat & Kidui Advocates seeking the following orders:
  2. That the Registrar as the Taxing Officer do give reasons pursuant to the Ruling dated 29th November 2022, as per the Notice issued by the Applicant dated 7th December 2022.
  3. That costs be provided for.
  4. The grounds in support of the application are that the Taxing Officer issued a ruling on 29th November 2022 on the Advocate/Client Bill of Costs dated 21st June 2022. That the Applicant was dissatisfied with the said ruling and filed an Objection seeking reasons under Rule 11(1) of the Advocates Remuneration Order. That the Taxing Officer did not give reasons as obligated by that Order and despite the Applicant sending reminders.
  5. The Applicant stated that there is a risk of execution by the Respondent.
  6. The Application is opposed by the Respondent through a Replying Affidavit sworn on the2nd October 2023 which covered both this application and the one dated 17th July 2023 which has been determined.
  7. It is the case for the Respondent that the Notice of Objection by the Applicant was filed on the 15th day which was outside the time allowed under Order 11 of the Advocates Remuneration Order. That the Applicant did not seek leave. That the ruling of the Taxing Officer contains reasons for the decision. That this application lacks merit and ought to be dismissed with costs.
  8. The Application was canvassed through written submissions. The Applicant’s submissions are dated 29th July 2024. The Applicant submitted that Rule 11(1) of the Advocates Remuneration Order obligates the Taxing Officer to give reasons; that the Applicant filed a Notice of Objection dated 7th December 2022 and filed it on 12th December 2022. It was submitted that the Taxing Officer disregarded the Applicant’s submissions dated 26th September 2022 in which the Applicant had raised issues on many items in the Advocate/Client Bill of Costs.
  9. The Applicant submitted that there was no inordinate delay in filing the Objection and that this court should be guided by Article 159(d) of the Constitution that justice shall be administered without undue reliance to procedural technicalities.
  10. The Respondent’s submissions are dated 16th August 2024. The Respondent submitted on one issue: whether the Taxing Officer is obligated to give further reasons once an objector has issued notice. It is the case for the Respondent that a ruling by the Taxing Officer contains reasons for the determination reached and that the ruling of 29th November 2023 contained reasons. The Respondent relied on Ahmed Nassir -Vs- National Bank of Kenya Ltd [2006] E.A where the court held; that:

"Although Rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the Hon. Taxing Officer should do so within 14 days, after the said decision and thereafter file his reference within 14 days from the date of receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of Sub-rule (2) of Rule 11 of the Advocates Remuneration Order demands so. The said Rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling."

  1. The Respondent relied on of First American Bank of Kenya vs Shah and Others (2002] 1 E.A. 64 at 69 where the court had this to say:

"First, I find that on the authorities, this court cannot interfere with the taxing officer's decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle"

  1. It was submitted that the Applicant has not demonstrated to this Court how the decision by the Taxing Officer was based on an error of principle or that the fee was excessive. That the Applicant has only mentioned that the Taxing Officer ignored their submission without giving sufficient grounds to enable this court interfere with the decision of the Taxing Officer and that the Applicant has failed to clearly demonstrate and prove why this Honourable Court should interfere with the said decision.
  2. It was submitted that the Applicant is trying to stop the Respondent from proceeding with the execution. The Respondent urged that this application be dismissed with costs.
  3. I have considered this application, the grounds in support of the same, the Replying Affidavit in opposition and submissions of the parties. I have not had the advantage of reading the ruling dated 29th November 2022 because I did not find it among the documents filed in court by the Applicant. Be that as it may, I understand the Applicant to be complaining that the Taxing Officer did not consider the Applicant’s submissions in respect of the Bill of Costs. That is not the same as stating that the Taxing Officer did not give any reasons for her decision.
  4. The Applicant has not addressed the issue as to why the Objection was filed outside the time allowed under Rule 11(1) of the Advocates Remuneration Order. Instead, the Applicant is asking this court not to put reliance on a procedural technicality.  After my careful consideration of the application and the arguments of the parties, it is my considered view that the Applicant has not demonstrated why this Court should interfere with the decision of the Taxing Officer. The Applicant has failed to demonstrate that either the decision was based on an error of principle, or that the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.
  5. Consequently, the application lacks merit and is hereby dismissed with costs. Orders accordingly.

Dated, signed and delivered this 24th day of January 2025


    KIPLAGAT & KIDUI ADVOCATES VS FRANCIS MURIGH KARIUKI KIPLAGAT & KIDUI ADVOCATES VS FRANCIS MURIGH KARIUKI