MEREKA & COMPANY ADVOCATES VS CHEGE WAINAINA & COMPANY ADVOCATES

Background
1. For determination is the Originating Summons (OS) dated 25th August 2023. It seeks to have the applicants give an account and pay up the amount of Kshs. 2,450,000/= paid by the applicants to the respondent on account of legal fees in HCC No. 532 of 2014. In the alternative, the applicants pray that the respondents’ taxed costs amounting to Kshs. 2,759,588.51 be set off from the Kshs. 2,450,000/= so paid to the respondents.

2. The OS is supported by the affidavit and further affidavit both sworn by NEHEMIAH K. ROTICH, the 2nd applicant. This dispute arises from an advocate/client relationship in which the applicants instructed the respondent to file HCC 532 of 2014. By consent of the parties the matter was referred to arbitration where it was heard and determined and an award published on 27th February 2018.

3. Following the conclusion of the arbitration proceedings, a dispute arose between the applicants and the respondent with respect to advocate-client fees. The applicants then instructed the present advocates to take over the execution of the award which is still pending in court.

4. The applicants contend that on diverse dates between 11th November 2014 to 13th February 2022 they paid to the respondent an amount of Kshs. 4,200,000/- towards his legal fees in the said suit. That the respondent’s bill of costs dated 20th January 2022 was taxed at Kshs. 2,759,588.51.

5. That during taxation the respondent admitted to having received legal fees amounting to Kshs.1,750,000/= but did not account for the extra Kshs. 2,450,000/=, hence the suit now before Court.

6. The OS is opposed by way of a Notice of Preliminary Objection dated 18th September 2023. The respondent contends that by the OS the applicants intend to appeal against the decision of the taxing officer without following the laid down procedure under Order 11 of the Advocates Remuneration Order.

7. The respondents also filed a replying and further replying affidavit all sworn by DENNIS MWANGI MAINA, practicing in the respondent law firm. The respondents confirm having acted for the applicants in HCC 532 of 2014 and further confirm the taxation of their fees although they state that the taxation in Misc. E047 of 2022 was not with respect to the above suit but to the arbitration proceedings.

8. The respondents further acknowledge having filed an application before this Court seeking to have judgment entered for the sum of 2,759,588.51/= as per the Certificate of Taxation dated 8th September 2022.

9. It is the respondents’ further case that before the court could set a ruling date, in the said application, the applicants filed the present OS. The respondents contend that this OS comes late in the day as the applicants had their day in court to contest the respondents’ bill of costs in respect of the arbitration proceedings.

10. It is further contended that the applicants also had the opportunity to file a reference in dissatisfaction with the taxing master’s decision but failed to do so. The respondents argue that this Honourable Court is therefore functus officio on interrogating the taxing master’s decision.

11. In any case, the respondents maintain that the amounts paid to the applicant on account of legal fees related to different distinct legal services rendered for the period between 2014 and 2022 when the applicants had retained the respondents.

12. The applicants maintain that their intention is not to interfere with the taxation decision but to seek an account of monies paid to the respondents. The applicants therefore maintain that this Court is not functus officio. They deny the claim by the respondent of the amounts being a retainer.

Analysis and determination
13. In order to expedite the determination of the matters in dispute, this Court directed parties to file their written submissions on both the PO and the OS. I have carefully considered all the filings by the respective parties and shall start by determining the PO.

14. The applicants argue that the allegation that the OS is an appeal to the taxing master’s decision cannot be a pure point of law. They contend that this is a disputed fact which ought to be interrogated by the court with a view of ascertaining whether the issues therein are related. It is the applicant’s case that the OS is a separate suit pursuant to Order 52 of the Civil Procedure Rules.

15. The preliminary contestation here as I understand it is whether this Court is properly seized of the issues under the OS, whether these issues have already been litigated and if the time and mode of relitigating has passed by operation of law.

16. It is apt to lay out the relevant legal provisions as I consider them. Section 7 of the Civil Procedure Rules is clear that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

17. Of importance is explanation note 4 under the said rules which reads as follows:
“Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”

18. The essence of the sub judice rule, which bars the trial of matters that are already under judicial consideration, is grounded in several key principles including the need to ensure that judicial resources are used efficiently and effectively, avoiding unnecessary expenditure of time and money. This is the overriding objective is espoused in section 1A and 1B of the Civil Procedure Rules.

19. Against this background, the respondents argue that the issue as to whether the fees have been paid is a matter that falls squarely within the purview of the taxing officer’s function in taxation. The respondent cites section 13A of the Advocates Remuneration Order which lays out the powers of the taxing master.

20. These powers include the power to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.

21. It is not contested that the taxation was a dispute about legal fees due to the respondents from the applicants. In order to enable the taxing master come to a conclusion on the amount due, the question of what amounts had been paid to the advocates was certainly relevant.

22. The applicants confirm that the respondents admit to having received an amount of Kshs.1,750,000/=. The respondents have not explained why the evidence pertaining to this credit was not raised before the taxing master for consideration during taxation. They have further not explained if the evidence relating to the rest of the money allegedly received was raised in the taxation and if so, why not.

23. I am inclined to agree with the respondents that the substance of the OS that is before this court is legal fees, which goes to the question of what is due to the respondents. In fact, the applicants seek at prayer (c) of the OS for the taxed costs amounting to Kshs. 2,759,588.51 to be set off from the Kshs. 2,450,000/=.

24. This is a matter that the taxing master had jurisdiction to determine. I must decline the invitation to make any finding on the issues in the OS. To proceed otherwise will be to determine this matter in the absence of a properly filed reference before this Court.

25. For all intents and purposes therefore, this matter is sub judice, being a matter that ought to have been made a ground of defence or attack in such former suit.

Disposition
26. Accordingly, the PO by the respondent succeeds and the OS is dismissed with costs.