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JudgmentKiplenge & Kurgat Advocates VS Ezekiel Komen9 min read

Kiplenge & Kurgat Advocates VS Ezekiel Komen

High Court at Milimani High Court · · Prof. (Dr.) Sifuna Nixon

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION & ECONOMIC CRIMES DIVISION

MISC CIVIL APPLICATION NO. E038 OF 2021

KIPLENGE & KURGAT ADVOCATES……………...……………......ADVOCATE

VERSUS

EZEKIEL KIPKULEI KOMEN…………………...………………………CLIENT

RULING

  1. These are taxation references by the Advocate and the Client, respectively. The genesis of this matter is that the Client herein EZEKIEL KIPKULEI KOMEN had a case in the Anti-corruption Magistrate’s Court, i.e. NAIROBI CHIEF MAGISTRATE’S COURT ANTI-CORRUPTION CASE NO. 5 OF 2010 REPUBLIC v. EZEKIEL KIPKULEI KOMEN & OTHERS. In which he was represented by MR JUMA KIPLENGE an Advocate practising in the law firm KIPLENGE & KURGAT ADVOCATES. But from the however, not only KIPLENGE appeared for the said Client, as other Advocates from the said law firm also appeared/attended in some court sessions. 
  2. Later, the said law firm filed its Advocate-Client Bill of costs dated 19th November 2021. The same was taxed Ex Parte for reason that the Client was absent yet duly served with the same and an Affidavit of Service filed.  The Affidavit was sworn on 14th October 2021, by one NELSON KISOLEI a process server. The Bill which was drawn at Ksh 57,612,738=, was taxed by Hon M. Osoro (Deputy Registrar/Taxing Officer) at Ksh 5,223,495=. The Client had opposed it, arguing that it is the said JUMA KIPLENGE he had personally instructed, and not the entire partnership KIPLENGE & KURGAT ADVOCATES the law firm. Hence that there was no Advocate-Client relationship between him and the law firm.
  3. The reasons for the decision are contained in the taxation ruling. The ruling was delivered on 28th February 2022, and certificate of costs was issued on 7th April 2022. Taxation Officer in proceeding to tax the said Bill, first found that an Advocate-Client relationship existed between this Client and the law firm (the partnership, KIPLENGE & KURGAT ADVOCATES).

These Taxation References

  1. Both the law firm and the Client were dissatisfied with the said Taxing Officer’s Taxation Decision. The firm with the amount at which the Bill was taxed, and the Client with the finding there was an Advocate-Client between him and the law firm. Consequently, each has filed a Reference in this Court, challenging the taxation decision. 
  2. The Client’s Reference was by a Chamber Summons dated 26th April 2023, and filed through KIPTOON & COMPANY ADVOCATES. The Advocate’s Cross-reference was filed vide a Chamber Summons dated 12th May 2023.
  3. Both references were filed pursuant to the provisions of Rule 11 (2) of the Advocates Remuneration Order of 2009.  The Client’s Reference was on two grounds, namely, (a) That he was never served with the subject Bill of Costs, and (b) That the amount of Ksh 5,223,495= at which the Bill was taxed was excessive.
  4. The Advocates Reference was on the ground that, the amount was too low, as the Bill had been drawn at Ksh 57,612,738=.  Arguing that the value of the subject matter of the case the subject of the Advocates costs was in excess of Kenya Shillings One Billion. That hence instructions fee alone should have been Ksh 32,822,000= (Kenya Shillings Thirty Two Million Eight Hundred Twenty Two Thousand).
  5. Both references have urged that the Taxing Officer’s said taxation be set aside, and the Bill be re-taxed by me or directed to be re-taxed by Taxing Officer other than the said HON M. OSORO. The Reference proceeded by way of written submissions; with each party filing its submissions.

Analysis and Determination

  1. In arriving at a determination, I have carefully distilled the grounds in both references, as well as the filed rival submissions of the parties, the relevant legal provisions and decided legal authorities including the ones cited by the parties in their submissions.
  2. Superior courts have umpteen times held that a judge to which a Taxation Reference has been lodged, may not interfere with a Taxing Officer’s taxation except in the following circumstances:
  3. Where there is an error of Principle; or
  4. Where the amount at which the Bill was taxed, is manifestly excessive or so high as to confine access to justice to the wealthy; or
  5. Where in the case of Advocates costs, the amount of the taxation is unreasonably low and inadequate to compensate the Advocate for the time, effort and skill expended on the case or in case of party to party costs the amount is too inadequate to reimburse a party his or her costs of the litigation; or
  6. To ensure consistency in awards in similar cases; For any or other reasonable or justifiable cause.
  7. In deciding whether to set aside the taxation, I have to first note that the taxation proceeded ex parte without the participation of the Client; and upon an affidavit of service of the Bill. It is my considered view that, merely denying service without challenging the Affidavit of Service (for instance through applying to cross-examine the process server) is not only unhelpful, but illogical and unacceptable as well.  Where a litigant has not done so, he or she will not be heard to allege lack of service.
  8. The Court may also on its own motion examine a filed Affidavit of Service, to determine (a) whether it meets the legal threshold for an Affidavit of Service, and (b) whether the service it alludes to was proper. Notably, in the said Affidavit of Service, the process server has not stated whether the said EZEKIEL KIPKULEI KOMEN was a person known to him at the time of the service or even previously; and how he identified him as the one named on the Bill of costs and therefore the one on whom the Bill was to be served. These are material facts, hence failure to depone to them, is in my view fatal and such as vitiates the service.
  9. An Affidavit of Service need be self-contained and self-explanatory as to speak for itself without inviting doubt, speculation, presumption; or clarification or defence from the deponent. It should neither be presumptive, question- begging nor dubious; as this one of NELSON KISOLEI. It is high time process servers in this county embraced some ethics and quality in their profession/trade, and desist from parody service of process; and such shadowy or shoddy Affidavits of Service.

I find the said service as well as that Affidavit of Service, wholly unsatisfactory. I therefore hereby disregard the said Affidavit and hold that either there was no service at all or the service, if any, was improper. This alone is sufficient ground for setting aside the taxation, and I hereby set it aside. The same shall be re-taxed in the manner I will direct in this ruling. Let me first clarify the legal position on a client’s instructions where the law firm is a partnership as well as the correct value of the subject matter of the case the subject of the Bill of Costs the cause of the dispute in these references.

A Client’s Instructions Where the Law Firm is a Partnership

  1. The Client EZEKIEL KIPKULEI KOMEN has denied ever instructing the said law firm (KIPLENGE & KURGAT ADVOCATES a partnership) and vigorously maintained that the one he personally instructed was MR JUMA KIPLENGE (now deceased) then a partner in the said law firm. To determine whether there existed an Advocate-Client relationship between this law firm and the said EZEKIEL KIPKULEI KOMEN, I have to determine (a) Whether the law firm was a partnership, (b) Whether or not it acted for him in the subject case, and (c) Whether or not he instructed any of the partners in the firm during the subsistence of the partnership.
  2. This Client has maintained that he particularly instructed only one partner (the late JUMA KIPLENGE) and not the law firm partnership itself (KIPLENGE & KURGAT ADVOCATES). I need to clarify, that unlike a corporation, that has its own legal personality away from and separate from its shareholder and promoters, a partnership has no such separate personality of its own.
  3. Therefore, except where the partnership deed has a clause to the contrary, a partnership is one whole inseparable entity, hence for law firms that are partnerships, instructions to any of the partners are instructions to the partnership. This principle applies from instructions, to actual attendance in court, to filing and even taxation of the Advocate-Client costs. Indeed like conjoined twins, partners in a partnership are conjoined at the hip.
  4. This unitary approach accords well with the legal status of a typical partnership and obviates the mind games, tricks and intrigues that clients such this one later employ to conveniently avoid the burden of legal fees and escape from paying. It is unconscionable for a client to be represented by an Advocate or law firm, after being so represented, later craft theories and arguments to free himself from ever paying for those legal service. No court should abet or aid such iniquity or provide asylum for such uncanny litigants.
  5. This Court cannot lend itself for use by such ungrateful clients. They need to know that they can only delay or postpone, but will not forever escape from a legal obligation they in exercising their freedom of contract voluntarily incurred. A court of equity cannot be used for betrayal and chicanery, as such will be an abuse of the court process.
  6. From the facts of this case, the Applicant law firm having represented this Client in the subject criminal case, there was an Advocate-Client relationship with the law firm, irrespective of the partner that either received instructions or attended the court sessions. Indeed instructions to an advocate need not be only be express or in writing. Where they relate to active litigation, instructions can be inferred from the totality of the circumstances, or even deciphered from the court record. I like the Taxing Officer, find that there existed an Advocate-Client relationship between the Respondent EZEKIEL KIPKULEI KOMEN and the Applicant law firm KIPLENGE & KURGAT ADVOCATES.

The Value of the Subject Matter

  1. The cases the subject of the law firm’s Bill of Costs were criminal cases in the Magistrate’s Anti-Corruption Court. To support its claim of the Ksh 57,612,738= of its Bill, the Applicant law firm has relied of the figures in Valuation Reports that the Ethics and Anti-Corruption Commission EACC had presented to that court. The Applicant took the total valuation as the value of the subject matter of those criminal cases.
  2. I like the Taxing Officer do not find that Valuation applicable in determining the value of the subject matter of the Criminal Cases. Neither is the value in the Valuation Report the value of the subject matter in this Taxation. The prosecution was for illegal acquisition of public land, and not a commercial claim for land.
  3. As that case was not a claim for property, the said valuation is irrelevant and cannot be applied in this taxation.  The case in the Magistrate’s Anti-Corruption Court was merely a prosecution for multiple criminal offences where the client EZEKIEL KIPKULEI KOMEN who was co-charged with five other accused persons was charged with the following counts: COUNT 1 - Breach of Trust by a person Employed in the Public Service, Contrary to Section 127 (1) as read with Section 127 (2) of the Penal Code Cap 63 Laws of Kenya. COUNT II - Conspiracy to Defraud, contrary to Section 317 of the Penal Code Cap 63 Laws of Kenya).

21. I hold that in disregarding the said valuation, the Taxing Officer properly applied her mind and cannot be faulted.   It is in my view, that in a taxation of Advocates costs for legal representation in such a criminal case, neither the value stated in the charge sheet nor the value stated in evidence, or in trial, can be used in subsequent taxation proceedings of an Advocate-Client Bill of Costs, as the value of the subject matter of those criminal cases. I however, find that the value applied by the Deputy Registrar to compute Instruction Fees was arbitrary and it is unclear how it was arrived at.

Final Orders

29. For the aforegoing reasons, allow both references, to the extent only that the taxation decision delivered herein by Hon. M. Osoro (Deputy Registrar/Taxing Officer) on 28th February, 2022 is hereby set aside; with each party bearing its costs.

30. It is hereby further ordered that the Advocate-Client Bill of Costs of KIPLENGE & KURGAT ADVOCATES, dated 19th November 2023, be re-taxed by a Taxing Officer other than the said Hon M. Osoro. The re-taxation to be in terms of the findings and guidelines contained in this ruling.  The re-taxation be undertaken within 30 days from the date of this ruling.

DATED and DELIVERED at NAIROBI on this 4th day of April 2024.

PROF (DR) NIXON SIFUNA

JUDGE

    Kiplenge & Kurgat Advocates VS Ezekiel Komen Kiplenge & Kurgat Advocates VS Ezekiel Komen