REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM MISC APP NO. E332 OF 2022
IN THE MATTER OF THE ADVOCATES ACT, CAP 16 OF THE LAWS OF KENYA
-AND-
IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT
-BETWEEN-
LUBULELLAH & ASSOCIATES…………...……………………....ADVOCATE
-VERSUS-
VINAYAK BUILDERS LIMITED………………………….………..…...CLIENT
RULING
1. This ruling is in respect to two applications. The first application is the Advocates Notice of Motion dated 9th December, 2022 filed pursuant to the provisions of Section 51 of the Advocates Act, Cap 16 of the Laws of Kenya, Rule 13A of the Advocates Remuneration Rules, Sections 3A & 63(e) of the Civil Procedure Act and Order 41 Rule 1 of the Civil Procedure Rules, 2010. The Advocate/Applicant seeks the following orders –
i) That the Court be pleased to enter judgment against the respondent on the amount of Kshs. 1,540,000/= certified on the Certificate of Taxation herein dated 2nd December, 2022, together with interest at the rate of 14% per annum from dated 25th April, 2022 being the date of service of the Bill of Costs until payment in full; (Sic),
ii) That a decree issues in respect of the sum of Kshs. 1,540,000/= certified on the Certificate of Taxation dated 2nd December, 2022, together with interest at the rate of 14% per annum from the 25th April, 2022 until payment in full, and that the applicant be at liberty to execute for recovery of same in such manner as a decree of this Honourable Court;
iii) That this Honourable Court does assess the costs awarded to the Advocates/applicants herein in its ruling rendered on the 12th November, 2022 on the Bill of Costs dated 25th April, 2022, and that judgement be entered on the said amount and it be added to the amount of Kshs. 1,540,000/= in the Taxing Master’s Certificate of Costs; and
iv) That the costs of this application be provided for and be included in amounts stated hereinabove.
2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on 9th December, 2022 by Edgar Wendoh Lubulellah, an Advocate of the High Court of Kenya practising as such in the name of the Advocate. In opposition thereto, the client filed a replying affidavit sworn on 14th February, 2023, by Naran Kunvarij Vaddodiya, the client’s Director.
3. The second application is the client’s Chamber Summons dated 13th December, 2022 brought under the provisions of Rules 11(1) & (2) of the Advocates Remuneration Order, the Advocates Act, Order 5, Order 10 Rule 11, Order 22 Rule 5 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya and all enabling provisions of the law. The client seeks the following orders-
i) Spent;
ii) Spent;
iii) That the decision of the Taxing Master delivered on 25th November, 2022 in far as the same relates to the reasoning and determination pertaining to the Taxation of the Bill of Costs dated 26th April, 2022 be set aside;
iv) That the Honourable Court be pleased to refer the matter back for re-taxation of the Bill of Costs and with proper directions thereof;
v) That in the alternative to prayer 4, the Honourable Court exercises its inherent jurisdiction and be pleased to re-tax the Bill of Costs dated 26th April, 2022 afresh taking into account the legal fees paid to the Advocate/Respondent herein and/or make directions to fresh taxation (sic) and
vi) That the costs of this application be provided.
4. The client’s application is premised on the grounds on the face of the Summons and is supported by an affidavit sworn on 13th December, 2022 by Naran Kunvarij Vaddodiya, the client’s Director.
5. In opposition thereto, the Advocate filed Grounds of Opposition dated 21st December, 2022 raising the following grounds –
i) That this Court lacks jurisdiction to entertain the applicant/client’s application;
ii) That the applicant/client’s application is misconceived, incompetent and fatally defective;
iii) That the applicant/client’s application is in violation of Paragraphs 11(1) & (2) of the Advocates Remuneration Order;
iv) That the applicant’s application is absolutely overtaken by events, as the Respondent/Advocate has already filed an application dated 16th December, 2022 seeking entry of judgment on the Certificate of Taxation and the same is coming up for hearing on 15th February, 2023;
v) That in the absence of a successful reference by the applicant/client, the Certificate of Taxation is final pursuant to Section 51(2) of the Advocates Act, and this Court lacks any jurisdiction to interfere with the same in any way whatsoever (Lubulellah &Associates Advocates vs N. K. Brothers Limited [20141 eKLR);
vi) That the applicant/client’s filing of the reference is a belated afterthought, and to allow the same at this stage would render the same a nullity and of no legal consequence;
vii) That further, this Court lacks jurisdiction to grant the prayers of stay of execution sought as the Advocates Act is a self-contained Act which does not make provision for stay of execution of costs taxed thereunder, (Affirmed in Elikana Mukundi Gatimu & another v John B Muya & 3 others [20061 eKLR & Orbit Chemical Industries Limited - Otieno - Qdek & Company Advocates [2006] eKLR);
viii) That without prejudice to the foregoing, the applicant/client has failed to plead or prove the necessary elements to warrant a stay of execution, as it has not stated or demonstrated that the application will be rendered nugatory or there will be substantial damage or loss, or that he is apprehensive that the Advocates/respondents will be unable to reimburse the costs in the (unlikely) event his application is to succeed;
ix) That the applicant/client has not pleaded that it is impecunious or unable to satisfy the taxed costs, nor has it explained the circumstances rendering it unable or incapacitated to remit the same in full. In the absence of such material evidence this Court has no basis upon which to exercise its discretion judiciously, whereas it is trite law that such discretion may only be exercised upon a consideration of material facts and not capriciously or whimsically; and
x) That for all the foregoing reasons, the application is bad in law, mischievous, in bad faith, frivolous, vexatious, and is an abuse of the process of Court. The same ought to be struck out with costs to the Respondent/Advocate.
6. The aforementioned applications were canvassed concurrently by way of written submissions. The Advocate’s submissions were filed on 16th March, 2023 by the law firm of Lubulellah & Associates, whereas the client’s submissions were filed by the law firm of Tito & Associates Advocates on 15th February, 2023.
7. Mr. Lubullelah, learned Counsel for the Advocate relied on the case of Tranquility Development Limited v Andrew Barney Khakula t/a J.S. Khakula & Co. Advocates [2017] eKLR and submitted that this Court has no jurisdiction to entertain the client’s reference since the client failed to lodge a valid Notice of Objection within 14 days’ of the Taxing Master’s decision as provided for under Rule 11 of the Advocates Remuneration Order and proceeded to file a reference in the absence of a Notice of Objection. He referred to the case of Joseph Cheruiyot & 3 others v Richard Kimutai A. Mibei [2021] eKLR and submitted that the filing a Notice of Objection is a fundamental step for a party seeking to file a Notice of Objection and that failure to file the same is is not a technical issue that can be overlooked under the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 for the sake of substantive justice as it goes to the jurisdiction of the Court.
8. Counsel cited the Court of Appeal case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Limited [2017] eKLR and stated that the Taxing Master has jurisdiction to determine questions of jurisdiction to tax a Bill of Costs in the first instance. He further cited the case of John Mark Nyaga Kamunyori T/A Kamunyori & Co. Advocates v Development Bank of Kenya Ltd [2007] eKLR and asserted that an Advocate and his client need not necessarily obtain a Court order for taxation of their costs before the Taxing Officer taxes costs between them. He stated that the foregoing means that the issues raised in the client’s Notice of Motion application dated 23rd August, 2022 could only be heard and determined by the Taxing Master in the first instance.
9. Mr. Lubullelah stated that Dr. Wilfred Akhonya Mutubwa retired from the Advocate’s firm on 12th February, 2020 unconditionally, thus he had no capacity to enter into a fee agreement on behalf of the Advocate firm as at 27th May, 2021. Counsel contended that the fee agreement dated 27th May, 2021 between the parties herein entered into by Dr. Wilfred Akhonya Mutubwa is not binding on the Advocate. Mr. Lubullelah cited the case of Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limited (2) [2006] 1 EA 5, and stated that the fee agreement relied on by the client does not meet the requirements of Section 45 of the Advocates Act, and even if it were to constitute an agreement between the parties herein, it would be an invalid agreement pursuant to the provisions of Section 46 of the Advocates Act.
10. Counsel referred to the provisions of Sections 107-109 of the Evidence Act, Cap 80 Laws of Kenya and submitted that the client has failed to prove to the required standard that it paid money to the Advocate, and that any alleged payment from the law firm of Mutubwa & Company Advocates cannot constitute evidence of payment by the client to the Advocate. He contended that the purported Cheque leaves and bank statements supposedly produced as annexures in an affidavit sworn by a former partner of the Advocate’s firm Dr. Wilfred Mutubwa, are untenable as proof of payment by the client to the Advocate and they are inadmissible in evidence for non-compliance with the mandatory requirements of Section 177 of the Evidence Act, and are of no evidential value and aid to the client, in proving payment made by the client to the Advocate.
11. Mr. Lubullelah cited the provisions of Section 51(2) of the Advocates Act, Cap 16 Laws of Kenya and the case of Mercy Nduta Mwangi t/a Mwangi Keng’ara Advocates v Invesco Assurance Company Limited [2021] eKLR and submitted that a Certificate of Costs is final as to the amount of fees due to an Advocate in a matter, thus once it is not challenged within the permitted time under the Advocates Remuneration Order or if a Reference thereon is dismissed, the only thing left is for the entry of judgment. He referred to the provisions of Rule 7 of the Advocates Remuneration Order and the case of Alex Otieno Omaya t/a Omaya & Co. Advocate v Piedmont Investments Ltd [2018] eKLR and contended that interest on an Advocate’s costs is awardable at 14% per annum 30 days after the date of service of either the Fee Note or the Bill of Costs.
12. Ms. Bakari, learned Counsel for the client submitted that the Taxing Master in her ruling confused the issue of validity of a fee agreement and whether there existed an Advocate - client relationship between the parties herein. She cited the case of Abincha & Co. Advocates v Trident Insurance Co. Ltd [2013] eKLR and stated that determination of the validity of a fee agreement is the preserve of the principal Court as it does not involve taxation. Counsel stated that the Taxing Master erred in her finding that no money was paid when the client annexed copies of cheques drawn in favour of the Advocate. Counsel asserted that the Taxing Master misconstrued the subject matter of the suit and held that the applicant filed a suit seeking to reinstate a matter for a claim worth Kshs. 84,863,810.81 plus interest, when the Bill of Costs arose from a Constitutional Petition that had no monetary or financial claim in which the client was the secondary respondent.
13. Counsel relied on the case of Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2015] eKLR and stated that since the Advocate’s Bill of Costs arose from a constitutional matter which ordinarily would not have any monetary value, it ought to have been taxed under Schedule 6(1)(j) of the Advocates Remuneration Order, 2014. She further stated that the subject matter of the arbitration proceedings has already been taxed in a separate case hence it is unjust to pay the Advocate twice on the same matter. Ms. Bakari referred to the case of the County Assembly of Kericho & another v Bett & another (Miscellaneous Cause No. E001 of 2020) [2022] KEELRC 82 (KLR) and submitted that the there was no justification for the Taxing Master to increase the instruction fees by Kshs.750,000/=, since the matter was not complex, it did not raise novel issues and it was not certified complex by the Trial Court.
14. Ms. Bakari submitted that the Taxing Master in her ruling failed to consider the affidavit of Dr. Wilfred Akhonya Mutubwa in breach of Article 50 of the Constitution of Kenya, 2010, which had been annexed to the client’s supporting affidavit despite the fact that the said Dr. Mutubwa is a former partner of the Advocate firm and the person who handled the client’s file during his tenure at the law firm. Counsel indicated that the said affidavit explained the agreement between the parties herein and confirmed that legal fees had already been paid in accordance with the parties’ agreement.
ANALYSIS AND DETERMINATION.
15. I have considered the applications filed herein, the grounds in support of the said applications and the affidavits filed in support thereof. I have also considered the replying affidavit by the client and the grounds of opposition by the Advocate together with the written submissions by Counsel for the parties. The Issues that arise for determination are –
i) Whether there is a competent reference by the client before this Court; and
ii) Whether the Court should enter judgment for the Advocate in terms of the Certificate of Taxation dated 2nd December, 2022, together with interest at the rate of 14% per annum.
Application dated 16th December, 2022.
16. In the affidavit filed by the Advocate sworn by Edgar Wendoh Lubulellah, he deposed that the Advocate filed an Advocate-Client Bill of costs which was taxed by the Taxing Master in the sum of Kshs. 1,540,000/= and thereafter, a Certificate of Taxation dated 2nd December, 2022 was issued.
17. He averred that the client was served with the said Bill of Costs on 25th April, 2022, thus judgment entered upon the sums certified in the Certificate of Taxation should attract interest at the rate of 14% per annum from 25th April, 2022 until payment in full.
18. The client in its replying affidavit sworn by Naran Kunvarij Vaddodiya deposed that the client filed an application dated 13th December, 2022 seeking to set aside the Taxing Master’s ruling dated 25th November, 2022 with respect to the Advocate-client Bill of Costs dated 26th April, 2022. He averred that the aforementioned application was filed in compliance with the provisions of Rule 11(2) of the Advocates Remuneration Order after receiving the reasons for the aforementioned ruling on 1st December, 2022. He further averred that in view of the foregoing, the provisions of Section 51(2) of the Advocates Act cannot take effect.
Application dated 13th December, 2022.
19. In the affidavit filed by the client sworn by Naran Kunvarij Vaddodiya, he deposed that the client was engaged in arbitration proceedings against Bellevue Development Company Limited and during that time it was represented by Dr. Wilfred Mutubwa, a partner at Lubulellah & Associates, He averred that the client paid the Advocate a deposit of Kshs. 482,000/= in legal fees during the pendency of the arbitration proceedings and agreed that the balance would be settled upon completion of the said proceedings.
20. That at the conclusion of the arbitration proceedings, the client’s Managing Director agreed with Dr. Mutubwa that the fees would be charged as per scale, and that Dr. Mutubwa also informed him that the Managing Partner of the Advocate firm was agreeable that the said fees would cater for the arbitration proceedings as well as any other resultant matters arising from the arbitration proceedings.
21. It was stated by the client that its Managing Director agreed with Dr. Mutubwa that the client would pay the Advocate Kshs.5,800,000/= as its legal fees, an amount which Dr Mutubwa deducted from the amount recovered from the execution process and forwarded the client balance. The client further stated that the subject of the suit from which the bill of costs arises is a constitutional petition which is a resultant matter arising from the arbitration proceedings.
22. Mr. Kunvarij contended that the client’s Managing Director was informed by Dr Mutubwa that he had paid the Advocate a total of Kshs. 2,800,000/= as its fees on the matter by way of cheques and retained the balance which was equivalent to his 43% share that he was entitled to as a partner. The client asserted that so far, it has paid the Advocate a total of Kshs. 6,282,000.00 as legal fees for services it offered while representing the client from the onset of the arbitration proceedings to the determination, and execution of the final award, as well as the resultant proceedings.
23. He stated that the Taxing Master erred by failing to tax the Bill of Costs in accordance with the fee agreement and tax-off the amount already paid to the Advocate by the client as legal fees and/or order the Advocate to refund the amount paid more than the taxed amount.
Whether there is a competent reference by the client before this Court.
24. The only recourse available for a party who feels aggrieved by a decision of the Taxing Master is by way of Reference to a Judge pursuant to the provisions of Rule 11 of the Advocates (Remuneration) Order. The Court in Machira v Magugu [2002] 2 EA 428, quoted by the Court in the case of Twiga Motors Limited v Dalmas Otieno Onyango [2017] eKLR held that -
"...the Advocates Remuneration Order is a complete code and there is no provision for the invocation of the Civil Procedure Rules... any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order..."
25. The client in this case filed a reference vide a Chamber Summons application dated 13th December, 2022 seeking to challenge the Taxing Master’s ruling dated 25th November, 2022 on the Advocate-Client Bill of Costs dated 25th April, 2022. The procedure for challenging a Taxing Master’s decision in the High Court is provided for under Rule 11(1) & (2) of the Advocates (Remuneration) Order 1962, which states as hereunder -
“(1) Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the 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…”
26. This means that the dissatisfied party is required to first give the Taxing Master a notice in writing within fourteen (14) days of his decision of the items of taxation to which he objects, this notice is what is commonly referred to as a notice of objection. Thereafter, the Taxing Master shall forward to the objector the reason(s) of his decision, and the objector may within fourteen (14) days from the receipt of the said reasons, make an application commonly referred to as a Reference to a Judge by way of Chamber Summons, setting out the grounds of objection.
27. The Supreme Court in the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR, considered the importance of adherence to laid down procedure in approaching a Court of law and stated as follows -
“This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.
Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2)(d) of the constitution, which proclaims that, “...courts and tribunals shall be guided by...[the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.”
28. The Advocate submitted that in this case, the client did not comply with the provisions of Rule 11(1) of the Advocates (Remuneration) Order before filing the reference herein. Notably, the client has not submitted on this issue but has averred at paragraph 6 of its affidavit in support of the Chamber Summons application dated 13th December, 2022 that it filed the said application having received the reasons for the Taxing Master’s ruling on 1st December, 2022 which time falls within the stipulated timelines for filing a reference.
29. On perusal of the client’s affidavit in support of the aforementioned application, and the replying affidavit in opposition to the Advocate’s application dated 9th December, 2022, it is evident that the client has neither annexed a copy of the Notice of Objection lodged under the provisions of Rule 11(1) of the Advocates (Remuneration) Order nor the reasons referred to at paragraph 6 of its supporting affidavit. It is trite that he who alleges must proof, this maxim is founded on the provisions of Sections 107, 108 & 109 of the Evidence Act Cap, 80 Laws of Kenya. For this reason, I am persuaded that the client did not file the Notice of Objection contemplated under Rule 11(1) of the Advocates (Remuneration) Order before filing the Reference herein. In striking out a Reference in the case of Matiri Mburu & Chepkemboi Advocates vs Occidental Insurance Company Limited [2017] eKLR, the Court therein stated thus:
“the provisions of Paragraph 11 of the Remuneration Order serve several purposes. Firstly, the requirement that a party seeking reasons gives a notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus, the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages. The objective is obvious: the expeditious disposal of taxation disputes. Thus, compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest. The provisions of Article 159 (2) (d) of the Constitution were not intended to overthrow procedural or technical requirements, but to guard against “undue regard “to procedural technicalities in the administration of justice.”
30. It is now settled law that this Court’s jurisdiction to deal with a reference is invoked upon compliance with the provisions of Rule 11(1) of the Advocates (Remuneration) Order. Further, Courts have on several occasions held that a Notice of Objection serves the same purpose as a memorandum of appeal. For this reason, failure to file and serve a Notice of Objection is fatal. It is not a technical issue that can be wished away under the provisions of Article 159 (2)(d) of the Constitution of Kenya, 2010 for the sake of substantive justice as submitted by Counsel for the client, as it goes to the foundation of the High Court’s jurisdiction to deal with a Reference.
31. In the circumstances, this Court finds that its jurisdiction to hear and determine the client’s application dated 13th December, 2022 has not been properly invoked due to lack of compliance with Rule 11(1) of the Advocates (Remuneration) Order. As a result, I hold that there is no competent reference by the client before this Court for hearing and determination. The purported Reference is dismissed with costs purported to the Advocate.
Whether the Court should enter judgment for the Advocate in terms of the Certificate of Taxation dated 2nd December 2022, together with interest at the rate of 14% per annum.
32. This Court has the jurisdiction to enter judgment provided the Bill of Costs has been taxed, the Taxing Master has issued a Certificate of Costs, and the retainer is not disputed pursuant to the provisions of Section 51(2) of the Advocates Act which states as hereunder –
“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.”
33. In the case of Lesinko Njororge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] eKLR, the Court in allowing an application for entering judgment arising from a certificate of costs held-
“The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.”
34. The Advocate filed an Advocate-Client Bill of Costs dated 25th April, 2022. The said bill was taxed at Kshs. 1,540,000/= vide a ruling delivered on 25th November, 2022. The Deputy Registrar has since issued a Certificate of Taxation for the said amount dated 2nd December, 2022. The client in its replying affidavit averred that it has filed a reference to the Taxing Master’s ruling delivered on 25th November, 2022 vide a Chamber Summons application dated 13th December, 2022, hence the Advocate’s application for entry of judgment is incompetent as the Certificate of Taxation is not final.
35. This Court has however earlier in this ruling found that the client’s reference is incompetent for want of compliance with Rule 11(1) of the Advocates (Remuneration) Order. In the absence of a competent challenge of the Taxing Master’s ruling dated 25th November, 2022 and an order varying and/or setting aside the said ruling and the Certificate of Costs thereof, this Court finds that the Certificate of Taxation dated 2nd December, 2022 issued by the Deputy Registrar in this matter is final and binding on the parties herein. It is noteworthy that the retainer is not disputed.
36. From the foregoing, I am satisfied that all the conditions set out under Section 51(2) of the Advocates Act have been complied with. For this reason, I enter judgment for the Advocate against the client for the sum of Kshs. 1,540,000/=.
37. Interest on the Advocates Costs is provided for under Regulation 7 of the Advocates (Remuneration) Order which states as hereunder –
“An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”
38. The import of Regulation 7 of the Advocates (Remuneration) Order is that interest on an Advocate’s fees can only be charged after the lapse of one month from the date the Bill of Costs was delivered to the client, and the claim for interest should have been raised before the amount of the Bill of Costs is paid or tendered in full. In this case, the client does not dispute being served with the Advocate’s Bill of Costs dated 25th April, 2022. It admits at paragraph 11 of its affidavit in support of the Chamber Summons application dated 13th December, 2022 receipt of the said Bill of Costs. Notably, the claim for payment of interest at 14% per annum has been raised in the instant application and the client is yet to pay the Advocate either in part or wholly, the amount taxed by the Taxing Master in her ruling delivered on 25th November 2022. In the end, this Court holds that the claim of interest at 14% per annum is payable.
39. The upshot is that the Advocate’s application is merited and it is hereby allowed in the following terms –
i) This Court hereby enters judgment for the Advocate against the client for Kshs. 1,540,000/=;
ii) The aforementioned amount shall attract interest at the rate of 14% per annum from 25th November, 2022 until payment in full; and
iii) Costs of the application dated 9th December, 2022 are awarded to the Advocate.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 1st day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence:
Mr. Wendoh h/b for Mr. Lubullelah for the Advocate
Ms Bakari for the respondent
Ms B. Wokabi - Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM MISC APP NO. E332 OF 2022
IN THE MATTER OF THE ADVOCATES ACT, CAP 16 OF THE LAWS OF KENYA
-AND-
IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT
-BETWEEN-
LUBULELLAH & ASSOCIATES…………...……………………....ADVOCATE
-VERSUS-
VINAYAK BUILDERS LIMITED………………………….………..…...CLIENT
RULING
1. This ruling is in respect to two applications. The first application is the Advocates Notice of Motion dated 9th December, 2022 filed pursuant to the provisions of Section 51 of the Advocates Act, Cap 16 of the Laws of Kenya, Rule 13A of the Advocates Remuneration Rules, Sections 3A & 63(e) of the Civil Procedure Act and Order 41 Rule 1 of the Civil Procedure Rules, 2010. The Advocate/Applicant seeks the following orders –
i) That the Court be pleased to enter judgment against the respondent on the amount of Kshs. 1,540,000/= certified on the Certificate of Taxation herein dated 2nd December, 2022, together with interest at the rate of 14% per annum from dated 25th April, 2022 being the date of service of the Bill of Costs until payment in full; (Sic),
ii) That a decree issues in respect of the sum of Kshs. 1,540,000/= certified on the Certificate of Taxation dated 2nd December, 2022, together with interest at the rate of 14% per annum from the 25th April, 2022 until payment in full, and that the applicant be at liberty to execute for recovery of same in such manner as a decree of this Honourable Court;
iii) That this Honourable Court does assess the costs awarded to the Advocates/applicants herein in its ruling rendered on the 12th November, 2022 on the Bill of Costs dated 25th April, 2022, and that judgement be entered on the said amount and it be added to the amount of Kshs. 1,540,000/= in the Taxing Master’s Certificate of Costs; and
iv) That the costs of this application be provided for and be included in amounts stated hereinabove.
2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on 9th December, 2022 by Edgar Wendoh Lubulellah, an Advocate of the High Court of Kenya practising as such in the name of the Advocate. In opposition thereto, the client filed a replying affidavit sworn on 14th February, 2023, by Naran Kunvarij Vaddodiya, the client’s Director.
3. The second application is the client’s Chamber Summons dated 13th December, 2022 brought under the provisions of Rules 11(1) & (2) of the Advocates Remuneration Order, the Advocates Act, Order 5, Order 10 Rule 11, Order 22 Rule 5 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya and all enabling provisions of the law. The client seeks the following orders-
i) Spent;
ii) Spent;
iii) That the decision of the Taxing Master delivered on 25th November, 2022 in far as the same relates to the reasoning and determination pertaining to the Taxation of the Bill of Costs dated 26th April, 2022 be set aside;
iv) That the Honourable Court be pleased to refer the matter back for re-taxation of the Bill of Costs and with proper directions thereof;
v) That in the alternative to prayer 4, the Honourable Court exercises its inherent jurisdiction and be pleased to re-tax the Bill of Costs dated 26th April, 2022 afresh taking into account the legal fees paid to the Advocate/Respondent herein and/or make directions to fresh taxation (sic) and
vi) That the costs of this application be provided.
4. The client’s application is premised on the grounds on the face of the Summons and is supported by an affidavit sworn on 13th December, 2022 by Naran Kunvarij Vaddodiya, the client’s Director.
5. In opposition thereto, the Advocate filed Grounds of Opposition dated 21st December, 2022 raising the following grounds –
i) That this Court lacks jurisdiction to entertain the applicant/client’s application;
ii) That the applicant/client’s application is misconceived, incompetent and fatally defective;
iii) That the applicant/client’s application is in violation of Paragraphs 11(1) & (2) of the Advocates Remuneration Order;
iv) That the applicant’s application is absolutely overtaken by events, as the Respondent/Advocate has already filed an application dated 16th December, 2022 seeking entry of judgment on the Certificate of Taxation and the same is coming up for hearing on 15th February, 2023;
v) That in the absence of a successful reference by the applicant/client, the Certificate of Taxation is final pursuant to Section 51(2) of the Advocates Act, and this Court lacks any jurisdiction to interfere with the same in any way whatsoever (Lubulellah &Associates Advocates vs N. K. Brothers Limited [20141 eKLR);
vi) That the applicant/client’s filing of the reference is a belated afterthought, and to allow the same at this stage would render the same a nullity and of no legal consequence;
vii) That further, this Court lacks jurisdiction to grant the prayers of stay of execution sought as the Advocates Act is a self-contained Act which does not make provision for stay of execution of costs taxed thereunder, (Affirmed in Elikana Mukundi Gatimu & another v John B Muya & 3 others [20061 eKLR & Orbit Chemical Industries Limited - Otieno - Qdek & Company Advocates [2006] eKLR);
viii) That without prejudice to the foregoing, the applicant/client has failed to plead or prove the necessary elements to warrant a stay of execution, as it has not stated or demonstrated that the application will be rendered nugatory or there will be substantial damage or loss, or that he is apprehensive that the Advocates/respondents will be unable to reimburse the costs in the (unlikely) event his application is to succeed;
ix) That the applicant/client has not pleaded that it is impecunious or unable to satisfy the taxed costs, nor has it explained the circumstances rendering it unable or incapacitated to remit the same in full. In the absence of such material evidence this Court has no basis upon which to exercise its discretion judiciously, whereas it is trite law that such discretion may only be exercised upon a consideration of material facts and not capriciously or whimsically; and
x) That for all the foregoing reasons, the application is bad in law, mischievous, in bad faith, frivolous, vexatious, and is an abuse of the process of Court. The same ought to be struck out with costs to the Respondent/Advocate.
6. The aforementioned applications were canvassed concurrently by way of written submissions. The Advocate’s submissions were filed on 16th March, 2023 by the law firm of Lubulellah & Associates, whereas the client’s submissions were filed by the law firm of Tito & Associates Advocates on 15th February, 2023.
7. Mr. Lubullelah, learned Counsel for the Advocate relied on the case of Tranquility Development Limited v Andrew Barney Khakula t/a J.S. Khakula & Co. Advocates [2017] eKLR and submitted that this Court has no jurisdiction to entertain the client’s reference since the client failed to lodge a valid Notice of Objection within 14 days’ of the Taxing Master’s decision as provided for under Rule 11 of the Advocates Remuneration Order and proceeded to file a reference in the absence of a Notice of Objection. He referred to the case of Joseph Cheruiyot & 3 others v Richard Kimutai A. Mibei [2021] eKLR and submitted that the filing a Notice of Objection is a fundamental step for a party seeking to file a Notice of Objection and that failure to file the same is is not a technical issue that can be overlooked under the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 for the sake of substantive justice as it goes to the jurisdiction of the Court.
8. Counsel cited the Court of Appeal case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Limited [2017] eKLR and stated that the Taxing Master has jurisdiction to determine questions of jurisdiction to tax a Bill of Costs in the first instance. He further cited the case of John Mark Nyaga Kamunyori T/A Kamunyori & Co. Advocates v Development Bank of Kenya Ltd [2007] eKLR and asserted that an Advocate and his client need not necessarily obtain a Court order for taxation of their costs before the Taxing Officer taxes costs between them. He stated that the foregoing means that the issues raised in the client’s Notice of Motion application dated 23rd August, 2022 could only be heard and determined by the Taxing Master in the first instance.
9. Mr. Lubullelah stated that Dr. Wilfred Akhonya Mutubwa retired from the Advocate’s firm on 12th February, 2020 unconditionally, thus he had no capacity to enter into a fee agreement on behalf of the Advocate firm as at 27th May, 2021. Counsel contended that the fee agreement dated 27th May, 2021 between the parties herein entered into by Dr. Wilfred Akhonya Mutubwa is not binding on the Advocate. Mr. Lubullelah cited the case of Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limited (2) [2006] 1 EA 5, and stated that the fee agreement relied on by the client does not meet the requirements of Section 45 of the Advocates Act, and even if it were to constitute an agreement between the parties herein, it would be an invalid agreement pursuant to the provisions of Section 46 of the Advocates Act.
10. Counsel referred to the provisions of Sections 107-109 of the Evidence Act, Cap 80 Laws of Kenya and submitted that the client has failed to prove to the required standard that it paid money to the Advocate, and that any alleged payment from the law firm of Mutubwa & Company Advocates cannot constitute evidence of payment by the client to the Advocate. He contended that the purported Cheque leaves and bank statements supposedly produced as annexures in an affidavit sworn by a former partner of the Advocate’s firm Dr. Wilfred Mutubwa, are untenable as proof of payment by the client to the Advocate and they are inadmissible in evidence for non-compliance with the mandatory requirements of Section 177 of the Evidence Act, and are of no evidential value and aid to the client, in proving payment made by the client to the Advocate.
11. Mr. Lubullelah cited the provisions of Section 51(2) of the Advocates Act, Cap 16 Laws of Kenya and the case of Mercy Nduta Mwangi t/a Mwangi Keng’ara Advocates v Invesco Assurance Company Limited [2021] eKLR and submitted that a Certificate of Costs is final as to the amount of fees due to an Advocate in a matter, thus once it is not challenged within the permitted time under the Advocates Remuneration Order or if a Reference thereon is dismissed, the only thing left is for the entry of judgment. He referred to the provisions of Rule 7 of the Advocates Remuneration Order and the case of Alex Otieno Omaya t/a Omaya & Co. Advocate v Piedmont Investments Ltd [2018] eKLR and contended that interest on an Advocate’s costs is awardable at 14% per annum 30 days after the date of service of either the Fee Note or the Bill of Costs.
12. Ms. Bakari, learned Counsel for the client submitted that the Taxing Master in her ruling confused the issue of validity of a fee agreement and whether there existed an Advocate - client relationship between the parties herein. She cited the case of Abincha & Co. Advocates v Trident Insurance Co. Ltd [2013] eKLR and stated that determination of the validity of a fee agreement is the preserve of the principal Court as it does not involve taxation. Counsel stated that the Taxing Master erred in her finding that no money was paid when the client annexed copies of cheques drawn in favour of the Advocate. Counsel asserted that the Taxing Master misconstrued the subject matter of the suit and held that the applicant filed a suit seeking to reinstate a matter for a claim worth Kshs. 84,863,810.81 plus interest, when the Bill of Costs arose from a Constitutional Petition that had no monetary or financial claim in which the client was the secondary respondent.
13. Counsel relied on the case of Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2015] eKLR and stated that since the Advocate’s Bill of Costs arose from a constitutional matter which ordinarily would not have any monetary value, it ought to have been taxed under Schedule 6(1)(j) of the Advocates Remuneration Order, 2014. She further stated that the subject matter of the arbitration proceedings has already been taxed in a separate case hence it is unjust to pay the Advocate twice on the same matter. Ms. Bakari referred to the case of the County Assembly of Kericho & another v Bett & another (Miscellaneous Cause No. E001 of 2020) [2022] KEELRC 82 (KLR) and submitted that the there was no justification for the Taxing Master to increase the instruction fees by Kshs.750,000/=, since the matter was not complex, it did not raise novel issues and it was not certified complex by the Trial Court.
14. Ms. Bakari submitted that the Taxing Master in her ruling failed to consider the affidavit of Dr. Wilfred Akhonya Mutubwa in breach of Article 50 of the Constitution of Kenya, 2010, which had been annexed to the client’s supporting affidavit despite the fact that the said Dr. Mutubwa is a former partner of the Advocate firm and the person who handled the client’s file during his tenure at the law firm. Counsel indicated that the said affidavit explained the agreement between the parties herein and confirmed that legal fees had already been paid in accordance with the parties’ agreement.
ANALYSIS AND DETERMINATION.
15. I have considered the applications filed herein, the grounds in support of the said applications and the affidavits filed in support thereof. I have also considered the replying affidavit by the client and the grounds of opposition by the Advocate together with the written submissions by Counsel for the parties. The Issues that arise for determination are –
i) Whether there is a competent reference by the client before this Court; and
ii) Whether the Court should enter judgment for the Advocate in terms of the Certificate of Taxation dated 2nd December, 2022, together with interest at the rate of 14% per annum.
Application dated 16th December, 2022.
16. In the affidavit filed by the Advocate sworn by Edgar Wendoh Lubulellah, he deposed that the Advocate filed an Advocate-Client Bill of costs which was taxed by the Taxing Master in the sum of Kshs. 1,540,000/= and thereafter, a Certificate of Taxation dated 2nd December, 2022 was issued.
17. He averred that the client was served with the said Bill of Costs on 25th April, 2022, thus judgment entered upon the sums certified in the Certificate of Taxation should attract interest at the rate of 14% per annum from 25th April, 2022 until payment in full.
18. The client in its replying affidavit sworn by Naran Kunvarij Vaddodiya deposed that the client filed an application dated 13th December, 2022 seeking to set aside the Taxing Master’s ruling dated 25th November, 2022 with respect to the Advocate-client Bill of Costs dated 26th April, 2022. He averred that the aforementioned application was filed in compliance with the provisions of Rule 11(2) of the Advocates Remuneration Order after receiving the reasons for the aforementioned ruling on 1st December, 2022. He further averred that in view of the foregoing, the provisions of Section 51(2) of the Advocates Act cannot take effect.
Application dated 13th December, 2022.
19. In the affidavit filed by the client sworn by Naran Kunvarij Vaddodiya, he deposed that the client was engaged in arbitration proceedings against Bellevue Development Company Limited and during that time it was represented by Dr. Wilfred Mutubwa, a partner at Lubulellah & Associates, He averred that the client paid the Advocate a deposit of Kshs. 482,000/= in legal fees during the pendency of the arbitration proceedings and agreed that the balance would be settled upon completion of the said proceedings.
20. That at the conclusion of the arbitration proceedings, the client’s Managing Director agreed with Dr. Mutubwa that the fees would be charged as per scale, and that Dr. Mutubwa also informed him that the Managing Partner of the Advocate firm was agreeable that the said fees would cater for the arbitration proceedings as well as any other resultant matters arising from the arbitration proceedings.
21. It was stated by the client that its Managing Director agreed with Dr. Mutubwa that the client would pay the Advocate Kshs.5,800,000/= as its legal fees, an amount which Dr Mutubwa deducted from the amount recovered from the execution process and forwarded the client balance. The client further stated that the subject of the suit from which the bill of costs arises is a constitutional petition which is a resultant matter arising from the arbitration proceedings.
22. Mr. Kunvarij contended that the client’s Managing Director was informed by Dr Mutubwa that he had paid the Advocate a total of Kshs. 2,800,000/= as its fees on the matter by way of cheques and retained the balance which was equivalent to his 43% share that he was entitled to as a partner. The client asserted that so far, it has paid the Advocate a total of Kshs. 6,282,000.00 as legal fees for services it offered while representing the client from the onset of the arbitration proceedings to the determination, and execution of the final award, as well as the resultant proceedings.
23. He stated that the Taxing Master erred by failing to tax the Bill of Costs in accordance with the fee agreement and tax-off the amount already paid to the Advocate by the client as legal fees and/or order the Advocate to refund the amount paid more than the taxed amount.
Whether there is a competent reference by the client before this Court.
24. The only recourse available for a party who feels aggrieved by a decision of the Taxing Master is by way of Reference to a Judge pursuant to the provisions of Rule 11 of the Advocates (Remuneration) Order. The Court in Machira v Magugu [2002] 2 EA 428, quoted by the Court in the case of Twiga Motors Limited v Dalmas Otieno Onyango [2017] eKLR held that -
"...the Advocates Remuneration Order is a complete code and there is no provision for the invocation of the Civil Procedure Rules... any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order..."
25. The client in this case filed a reference vide a Chamber Summons application dated 13th December, 2022 seeking to challenge the Taxing Master’s ruling dated 25th November, 2022 on the Advocate-Client Bill of Costs dated 25th April, 2022. The procedure for challenging a Taxing Master’s decision in the High Court is provided for under Rule 11(1) & (2) of the Advocates (Remuneration) Order 1962, which states as hereunder -
“(1) Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the 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…”
26. This means that the dissatisfied party is required to first give the Taxing Master a notice in writing within fourteen (14) days of his decision of the items of taxation to which he objects, this notice is what is commonly referred to as a notice of objection. Thereafter, the Taxing Master shall forward to the objector the reason(s) of his decision, and the objector may within fourteen (14) days from the receipt of the said reasons, make an application commonly referred to as a Reference to a Judge by way of Chamber Summons, setting out the grounds of objection.
27. The Supreme Court in the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR, considered the importance of adherence to laid down procedure in approaching a Court of law and stated as follows -
“This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.
Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2)(d) of the constitution, which proclaims that, “...courts and tribunals shall be guided by...[the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.”
28. The Advocate submitted that in this case, the client did not comply with the provisions of Rule 11(1) of the Advocates (Remuneration) Order before filing the reference herein. Notably, the client has not submitted on this issue but has averred at paragraph 6 of its affidavit in support of the Chamber Summons application dated 13th December, 2022 that it filed the said application having received the reasons for the Taxing Master’s ruling on 1st December, 2022 which time falls within the stipulated timelines for filing a reference.
29. On perusal of the client’s affidavit in support of the aforementioned application, and the replying affidavit in opposition to the Advocate’s application dated 9th December, 2022, it is evident that the client has neither annexed a copy of the Notice of Objection lodged under the provisions of Rule 11(1) of the Advocates (Remuneration) Order nor the reasons referred to at paragraph 6 of its supporting affidavit. It is trite that he who alleges must proof, this maxim is founded on the provisions of Sections 107, 108 & 109 of the Evidence Act Cap, 80 Laws of Kenya. For this reason, I am persuaded that the client did not file the Notice of Objection contemplated under Rule 11(1) of the Advocates (Remuneration) Order before filing the Reference herein. In striking out a Reference in the case of Matiri Mburu & Chepkemboi Advocates vs Occidental Insurance Company Limited [2017] eKLR, the Court therein stated thus:
“the provisions of Paragraph 11 of the Remuneration Order serve several purposes. Firstly, the requirement that a party seeking reasons gives a notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus, the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages. The objective is obvious: the expeditious disposal of taxation disputes. Thus, compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest. The provisions of Article 159 (2) (d) of the Constitution were not intended to overthrow procedural or technical requirements, but to guard against “undue regard “to procedural technicalities in the administration of justice.”
30. It is now settled law that this Court’s jurisdiction to deal with a reference is invoked upon compliance with the provisions of Rule 11(1) of the Advocates (Remuneration) Order. Further, Courts have on several occasions held that a Notice of Objection serves the same purpose as a memorandum of appeal. For this reason, failure to file and serve a Notice of Objection is fatal. It is not a technical issue that can be wished away under the provisions of Article 159 (2)(d) of the Constitution of Kenya, 2010 for the sake of substantive justice as submitted by Counsel for the client, as it goes to the foundation of the High Court’s jurisdiction to deal with a Reference.
31. In the circumstances, this Court finds that its jurisdiction to hear and determine the client’s application dated 13th December, 2022 has not been properly invoked due to lack of compliance with Rule 11(1) of the Advocates (Remuneration) Order. As a result, I hold that there is no competent reference by the client before this Court for hearing and determination. The purported Reference is dismissed with costs purported to the Advocate.
Whether the Court should enter judgment for the Advocate in terms of the Certificate of Taxation dated 2nd December 2022, together with interest at the rate of 14% per annum.
32. This Court has the jurisdiction to enter judgment provided the Bill of Costs has been taxed, the Taxing Master has issued a Certificate of Costs, and the retainer is not disputed pursuant to the provisions of Section 51(2) of the Advocates Act which states as hereunder –
“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.”
33. In the case of Lesinko Njororge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] eKLR, the Court in allowing an application for entering judgment arising from a certificate of costs held-
“The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.”
34. The Advocate filed an Advocate-Client Bill of Costs dated 25th April, 2022. The said bill was taxed at Kshs. 1,540,000/= vide a ruling delivered on 25th November, 2022. The Deputy Registrar has since issued a Certificate of Taxation for the said amount dated 2nd December, 2022. The client in its replying affidavit averred that it has filed a reference to the Taxing Master’s ruling delivered on 25th November, 2022 vide a Chamber Summons application dated 13th December, 2022, hence the Advocate’s application for entry of judgment is incompetent as the Certificate of Taxation is not final.
35. This Court has however earlier in this ruling found that the client’s reference is incompetent for want of compliance with Rule 11(1) of the Advocates (Remuneration) Order. In the absence of a competent challenge of the Taxing Master’s ruling dated 25th November, 2022 and an order varying and/or setting aside the said ruling and the Certificate of Costs thereof, this Court finds that the Certificate of Taxation dated 2nd December, 2022 issued by the Deputy Registrar in this matter is final and binding on the parties herein. It is noteworthy that the retainer is not disputed.
36. From the foregoing, I am satisfied that all the conditions set out under Section 51(2) of the Advocates Act have been complied with. For this reason, I enter judgment for the Advocate against the client for the sum of Kshs. 1,540,000/=.
37. Interest on the Advocates Costs is provided for under Regulation 7 of the Advocates (Remuneration) Order which states as hereunder –
“An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”
38. The import of Regulation 7 of the Advocates (Remuneration) Order is that interest on an Advocate’s fees can only be charged after the lapse of one month from the date the Bill of Costs was delivered to the client, and the claim for interest should have been raised before the amount of the Bill of Costs is paid or tendered in full. In this case, the client does not dispute being served with the Advocate’s Bill of Costs dated 25th April, 2022. It admits at paragraph 11 of its affidavit in support of the Chamber Summons application dated 13th December, 2022 receipt of the said Bill of Costs. Notably, the claim for payment of interest at 14% per annum has been raised in the instant application and the client is yet to pay the Advocate either in part or wholly, the amount taxed by the Taxing Master in her ruling delivered on 25th November 2022. In the end, this Court holds that the claim of interest at 14% per annum is payable.
39. The upshot is that the Advocate’s application is merited and it is hereby allowed in the following terms –
i) This Court hereby enters judgment for the Advocate against the client for Kshs. 1,540,000/=;
ii) The aforementioned amount shall attract interest at the rate of 14% per annum from 25th November, 2022 until payment in full; and
iii) Costs of the application dated 9th December, 2022 are awarded to the Advocate.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 1st day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence:
Mr. Wendoh h/b for Mr. Lubullelah for the Advocate
Ms Bakari for the respondent
Ms B. Wokabi - Court Assistant.