Introduction
1. This is an Application/Reference from the Ruling of the Deputy Registrar dated 28th November 2022 where the Deputy Registrar dismissed the Advocate’s/Applicant’s Notice of Motion application dated 3rd June 2022 in which the Applicant/Advocate had sought for leave to amend its Bill of Costs dated 15th April 2021 to add introduce, one JOEL K. KIBE as the 2nd Respondent in the Application.
2. The background of the matter is that Vide a Notice of motion application dated 3rd June 2022, brought pursuant to Rule 13A, 21, and 71 of the Advocates Remuneration (Amendment) Order and Section 100 of the Civil Procedure Act, the Advocate/Applicant sought to amend the Advocate/Client Bill of Costs dated 15th April 2021, to add one JOEL K. KIBE as the 2nd Respondent to the Bill of Costs.
3. The Application was opposed by the Respondent who filed Grounds of Opposition dated 26th July 2022.
4. On 28th November 2022, the Deputy Registrar upon considering the application, dismissed the Application, finding that prior to the said application for amendment, the Bill of Costs in question had already been withdrawn against the said Joel K. Kibe, the intended 2nd Respondent, by the Advocate/Applicant.
5. Dissatisfied with the finding of the Deputy Registrar, the Advocate filed this Reference vide a memorandum of appeal dated 2nd December 2022. The appeal is predicated on the following grounds; -
i. That the learned Deputy Registrar erred in law and fact in holding that a previously filed Notice of withdrawal of a suit against one Joel Kamau Kibe was a bar to the Notice of motion dated 3rd June 2022, which was sought to amend the Advocate/Client Bill of costs dated 10th May 2021 and reinstate one Joel Kamau Kibe as a 2nd Client/Respondent.
ii. That the learned Deputy Registrar erred in law and in fact in holding that no proceedings could be brought against Joel Kamau Kibe, after filing a notice of withdrawal of suit against him.
iii. That the learned Deputy Registrar fell into error of law and fact when she failed to appreciate the gist of the Notice of motion dated 3rd June 2022, the submissions and authorities filed in court, which led to the unjust and lopsided ruling dated 28th November 2022.
iv. That the learned Deputy Registrar erred in law and in fact, in failing to find that amendment of pleadings is permissible under the law for the ends of justice to be met.
v. That the learned Deputy Registrar failed to find that no prejudice would be suffered by the Respondent if the amendments were to be allowed.
vi. That the learned Deputy Registrar erred in fact and law in failing to exercise her discretion and allow the amendment of the Bill of Costs dated 10th May 2021.
6. This appeal was disposed of by way of written submissions. The Appellant’s submissions are dated 19th April 2024. No submissions were filed on behalf of the Respondent.
Advocate’s submissions
7. The appellant submitted that the ruling of 28th November 2022 determined a matter which was completely different from the case which was filed before it. According to the Appellant/Advocate, the application dated 3rd June 2022 was for amendment of the Bill of Costs which is expressly provided for under the law and was simply intended to add a party to the suit.
8. The Appellant maintained that the Advocate for the Advocates for the Respondent lacked the locus standi to oppose and defend an application on behalf of the intended 2nd Respondent, whom they had not formally come on record for.
9. It was further urged by the Appellant that the learned Taxing Officer misconstrued the effect of the Notice of withdrawal/discontinuance of a suit as leading to application of the principles of res judicata by holding that the withdrawal brought an end to the suit against the intended new party. The Appellant/Advocate asserted that Order 25 rule 1 provides that a notice of discontinuance of a suit will not be used as a defence in a subsequent action.
10. According to the Appellant, the Taxing officer failed to consider the appellant’s submissions dated 17th October, 2022, where the appellant had submitted that in an application for amendment of pleadings, the duty of the applicant is to demonstrate to the court that there is a basis for adding the intended new party or for the amendments. The appellant presented correspondence to show that the intended new party issued the instructions for ascertainment of the status of the security in form of a lien of Kshs. 57, million belonging to him. The appellant put reliance on several authorities which this court will consider in its determination.
Analysis and determination
11. I have carefully considered the memorandum of appeal, the record of appeal, and the written submissions together with the cited authorities. I find that the only issue for determination is whether the Deputy Registrar erred in dismissing the Appellant’s Application dated 3rd June 2022.
12. The law on the amendment of a Bill of Costs is anchored under Rule 71 of the Advocates Remuneration Order which allows amendment either by consent of the parties or by permission or discretion of the court of Taxing officer. The said provision provides that: -
“No addition or alteration shall be made in a bill of costs by the party submitting the same after the bill has been lodged for taxation except by consent of the parties, or by permission or discretion of the court or taxing officer.”
13. The principles guiding amendment of pleadings also apply to the amendment of a Bill of Costs. The general power to amend is provided for under Section 100 of the Civil Procedure Act which states as follows: -
“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”
14. Further, Order 8 rule 5(1) of the Civil Procedure Rules reads as follows: -
“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.”
15. Therefore, amendment of a Bill of Costs being an exercise of discretion by the court or the taxing officer, the same should be exercised judiciously within the established legal principles of law to avert any injustice. Pleadings may be amended at any stage before delivery of judgment for purposes of determining the real question or issue raised by the parties.
16. In determination of an application for amendment, the court must consider whether the amendment will prejudice or deny the Respondent an opportunity to put a defence, whether the amendment is introducing new issues, whether the amendment is necessary and will assist the court in determining the real issues in controversy.
17. In Institute for Social Accountability & another vs Parliament of Kenya & 3 others (2014) eKLR, the court held thus;
“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”
18. In the instant appeal, the appellant sought to amend its Bill of Costs dated 15th April 2022 to add a 2nd Respondent who had been discontinued from the proceedings following the filing of a Notice of withdrawal dated 10th May 2021. It was argued that the 2nd Client one Joel K. Kibe, the Managing Director of the Respondent herein engaged the advocates’ services and sought a legal opinion. Due to inadvertent oversight, a Notice of withdrawal of the advocate/client Bill of costs against the intended 2nd Client was filed. The intended client had instructed the appellant to recover a sum of Kshs. 57,000,000/= which was used as a collateral for the performance bond to the Respondent in this appeal.
19. I have considered the pleadings and noted that the amendment sought was necessary to bring on board the party who instructed the Appellant/Advocate. The amendment was not therefore an abuse of the court process neither was it made to introduce a new cause of action or cause prejudice to the Respondent’s case.
20. Having said so, unless the amendment of the Bill of Costs would occasion prejudice to the Respondent, it should be allowed so that the Court can have a chance to determine the matter in controversy. None has been shown in the instant case. In any event, I do not see any prejudice to be suffered in the instant appeal if the appellant is granted leave to amend its Bill of Costs and in particular, to add the name of Joel K. Kibe as the 2nd Client/Respondent.
21. The upshot of the foregoing is that this appeal is merited and is hereby allowed with costs.
22. Accordingly, the Ruling of the lower court dated 28th November 2022 be set aside in its entirety and be substituted with an order of this Court allowing the Notice of Motion dated 3rd June 2022 as prayed.
23. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 22ND DAY OF JANUARY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Mwangi………..for the Applicant
N/A………………….for the Respondent