1. The Applicant has moved this court vide notice of motion dated 18th February, 2020 made under the provisions of Section 45 (2a & 1b), 45 (6), 51(2) of the Advocates Act CAP 16 laws of Kenya and Order 52 Rule 361 of the Civil Procedure Rules for the following orders:-
- That the fee agreement entered into between the Applicant and the Respondent herein, in the case outlined below be adopted as a certificate of costs.
- That upon grant of prayer (1) above, the certificate of costs be deemed as a judgment and decree of this honourable court, together with interest thereon at 14% per annum in accordance with Rule 7 of the Advocates Remuneration Order, one (1) month from the 8th November 2018 being the date of demand until payment in full.
- That the costs of the application be borne by the Respondent.
2. The application is supported by an affidavit of David Otieno esquire advocate who deposes that on 18.7.2018 the Respondent retained the Applicant in Public Procurement Administrative Review Board Application No. 146 of 2018 between Pride Kings Services Ltd and the Respondent. He states that after negotiations the advocates fees were agreed at Kshs.2,180,400 and that despite numerous demands by Applicant to the Respondents for payment, the latter has declined to make payment hence the filing of this application.
3. This application is resisted by the Respondent who filed a replying affidavit sworn by Stephen Ligawa on 15th June, 2020. Mr. Stephen Ligawa deposes that this application is res judicata as a court of competent jurisdiction had already ruled on the matter in Kisumu High court Miscellaneous Application Noo. 120 of 2019: Owiti Otieno & Ragot & Company Advocates -vs- South Nyanza Sugar Company Limited and the Applicant herein has not proffered any appeal against the decision of the Deputy Registrar.
4. The Respondent maintains that thee exists no agreement on the advocates fees and the letter dated 3.2.2020 that purported to agree on fees, was authored by an unauthorized person. Further that the purported agreed amount of Kshs.2,180,400 is well beyond the prescribed fees under schedule.
5. The Respondent maintains that the Applicant ought to tax it’s advocate/client bill of costs as per paragraph 13 of the Advocates Remuneration Amendment Order 2014 instead of forum shopping.
6. This application was canvassed by way of written submissions of parties.
7. Given that the Respondent has maintained that this application is res judicata in light of the ruling in Kisumu High Court Miscellaneous Civil Application No. 120 of 2019, I will in the 1st instance analyze the ruling therein. At page 2 of the ruling the taxing master held thus:
“Section 45 of the Advocates Act CAP 16 Laws of Kenya, makes provision for agreements between advocates and their clients with respect to remuneration. The said agreements are allowed with a disclaimer…….. that such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.”
This provision is expressed (sic) and clear in my view. There is no fee agreement signed between parties that has been annexed to substantiate the Applicant’s claim. This court therefore cannot grant prayer No. 1 of the application. It therefore goes that prayer 2 cannot be granted as sought. Further, this court notes that prayer No. 2 is beyond its jurisdiction as conversion of a certificate of costs into a judgment and decree of court can only be done by the Honourable Judge.
8. The Applicant has now moved this court for conversion of what it terms as a fee agreement of Kshs.2,180,400 as a judgment of this court. This court indeed has the jurisdiction to grant the prayer sought and that prayer was never dealt with by the taxing officer wherefore it is not res judicata.
9. On the issue whether an agreement exists on legal fees, I do note that the Applicant has placed reliance on a letter dated 3rd February 2020 authored by one Maurice Omondi on behalf of the Company Secretary of the Client/Respondent. The letter provides thus:-
“Reference is made to your letter dated 11th November 2019.
We wish to confirm that the agreed professional fees in this matter is Kshs.2,180,400 (two million one eighty thousands and four hundred only) as per your final proforma invoice dated 16th October, 2018.”
10. The wording of the letter is clear and unequivocal that an agreement on fees had been reached. The said was duly signed by the said Maurice Omondi wherefore I do find that as at the time of authoring the said letter the advocates/applicant and the client/respondent had already reached a consensus on the fees payable to the Applicant wherefore pursuant to the provisions of Section 45 of the Advocates Act CAP 16 Laws of Kenya, there is no requirement for the advocate/applicant to file a bill of costs given the agreement on fees.
11. The aforesaid agreement had not been entered into in the year 2019 when the Applicant herein preferred Kisumu High Court Miscellaneous Civil Application No. 120 of 2019 wherefore it is not res judicata and it does not fall under the purview of Section 7 of the Court Procedure Act which provides 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.”
12. In the case of The Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 others (2017)eKLR cited by the Respondent the Court of Appeal rendered itself on the doctrine of res judicata thus:-
“(f) or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;
- The suit or issue was directly and substantially in issue in former suit.
- That former suit was between the same parties or parties under whom they or any of them claim.
- Those parties were litigating under the same title.
- The issue was heard and finally determined in the former suit.
- The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
The court went on to state the role of the doctrine:
“The rule or doctrine of res judicata serves the salutary aim of brining finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and for a, to obtain a last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
In this instance there was no final determination on the fees payable to the Applicant as the court ruled that no agreement on fees existed then and in the absence of an agreement the Applicant was to tax its costs subsequent thereto an agreement on fees was reached hence this application.
13. The Respondent has deponed that Mr. Maurice Omondi was not authorized to write the agreement letter wherefore the Respondent should be allowed to avoid it altogether. This line of defence is not plausible nor sustainable in light of the fact that the Respondent is estopped from avoiding the agreement on legal fees by the Turquand Rule which dictates that each outsider contracting with a company in good faith is entitled to assume that the internal requirements and procedures have been complied with (see Royal British Bank -vs- Turguand (1856) 6 E & B 327).
14. It is noteworthy that the parties herein have by conduct honoured the said agreement on legal fees and the Applicant has deposed that so far the Respondent has already paid the advocate a sum of Kshs.1,300,000 as proved by the Applicant’s annexures marked as DO5 in the further affidavit of David Otieno sworn on 23.10.2023.
15. On the balance I do find that his application is well merited and I therefore allow the same and I make the following orders:-
a) The fee agreement contained in the Respondent’s letter dated 3.2.2020 for a sum of Kshs.2,180,400 is hereby adopted as a certificate of costs.
b) The certificate of costs of Kshs.2,180,400 is hereby converted as a judgment and decree of this court and the judgment sum shall attract interest at the rate of 14% per annum in accordance with Rule 7 of the Advocates Remuneration Order from the 8th day of December 2018 until payment in full.
c) The Applicant is awarded costs of this application assessed at Kshs.30,000.
d) This file is marked as closed.
Dated, signed and delivered this 6th day of May 2024.