Introduction
1. Before me is the Chamber Summons application dated 15th July 2022 taken out by the Advocate/Applicant herein which is and expressed to be brought under Schedule 6 of the Advocates Remuneration Order and Section 3A of the Civil Procedure Act. In the application, the Advocate seeks for orders that: -
i. Spent
ii. The Honourable Court be pleased to strike out and or set aside the Ruling of Hon. Emily Moraa in Misc. No. E790 of 2021 dated 300 June 2022 striking out the Applicant's Bill of Cost dated 21st October 2021.
iii. The Advocates-Client Bill of Costs dated 21st October 2021 be placed before the Deputy Registrar for taxation.
iv. Such further or other relief as this Honorable Court may deem just and expedient to grant.
2. The application is based on the grounds on the face of the application and is further supported by an affidavit sworn by Prof. Tom Ojienda, SC the Managing Partner of the Advocate/Applicant in this matter.
3. The background of the matter is that the Applicant filed an Advocate-Client Bill of Costs dated 21st October against the Respondent on account of having represented the Respondent in the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
4. The Client/Respondent, by way of Preliminary Objection dated 4th April 2022, opposed the said Advocate-Client Bill of Costs on the basis that no instructions had been issued by the Respondent to the Advocate/Applicant in respect of the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
5. On 30th June 2022, the Taxing Master (“the DR”) delivered her Ruling on the matter and upheld the Respondent’s said Preliminary Objection, thereby striking out the Advocate’s Bill of Costs on the basis that there were no written instructions from the Respondent appointing the Advocate/Client to act in the matter.
6. Aggrieved by the Ruling by the DR, the Applicant, therefore, lodged the instant application/reference, urging this court to find that the Applicant had been duly instructed by the Respondent in the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
7. Consequently, the Applicant prayed that the Ruling of the Taxing Officer in Misc. No. E790 of 2021 dated 30th June 2022 striking out the Applicant's Bill of Cost dated 21st October 2021 be set aside and that the Advocates-Client Bill of Costs be placed before the Deputy Registrar for taxation.
8. In response to the Application, the Client/Respondent relied on an affidavit sworn on 11th October 2024 by Lornah Losem, the Chief Executive Officer of the Respondent. According to the deponent, while it is true that parties had an Advocate-Client relationship in the Constitutional Petition No. 381 of 2014 as consolidated with Constitutional Petition No. 430 of 2014 (Council of Governors & 3 others v Senate & 53 others), no instructions had been given to the Advocate/Applicant to act for the Respondent in the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
9. The Respondent therefore maintained that the ruling by the Taxing Officer (Hon. E. Moraa) striking out the Applicant’s Advocate-Client Bill of Costs dated 21st October 2021 was sound in law.
10. Parties filed their respective submissions which were highlighted in court on 15th and 16th October 2024. The Applicant’s submissions are dated 10th October 2024 whilst that of the Respondent is dated 11th October 2024.
Advocate/Applicant’s Submissions
11. The Applicant argued the application under two main headings. First, that the Taxing Officer lacked jurisdiction to determine the Preliminary Objection, and, second, that the Taxing Officer erred in failing to find that there was an Advocate-Client relationship between the Applicant and the Respondent.
12. In submitting that the Taxing Master lacked jurisdiction to deal with the Respondent’s Preliminary Objection, the Applicant maintained that a taxing officer's jurisdiction is limited to taxing the Bill of Costs and giving reasons thereto. That where the jurisdiction of the Taxing office is challenged, then the matter ought to be referred to a judge for determination. The Applicant cited among others, the case of M/S Behan & Okero Advocates vs. National Bank of Kenya Limited Kisumu HCMA No. 40 of 2007 in support of this position.
13. It was further the Applicant’s submissions that the Taxing Master erred in failing to find that there was an Advocate-Client relationship between the Applicant and the Respondent. According to the Applicant, the Respondent herein was a client of the Applicant within the meaning of Section 2 of the Advocate’s Act, and that the Respondent, through its conduct, impliedly gave instructions to the Applicant to represent its interest in the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
14. The Applicant maintained that instructions to an Advocate by a Client need not be in writing and that the participation and authority of an advocate in a matter can be implied or discerned from the client’s conduct. The Applicant cited the Court of Appeal decision in the case of Omulele & Tollo Advocates – vs - Mount Holdings Limited (2016) eKLR in support of his submissions.
15. The Applicant invited the Court to take note that the Respondent never objected, expressly or impliedly, to the actions of the Advocate, both in the high court and at the Court of Appeal in defending the interest of the Respondent by receiving service of the court papers and attending court on behalf of the Respondent. Further, that the Taxing Officer disregarded the correspondence of 16th January 2017 in which the Respondent sought the justification of the Applicant’s fee note.
16. In the premises, the Applicant urged this Court to allow the Reference dated 15th July 2022 and submit the Bill of Costs dated 21st of October 2021 for taxation.
Client/Respondent’s Submissions
17. On its part, the Respondent supported the Taxing Officer’s Ruling of 30th June 2022 and urged this court to uphold the same.
18. While admitting that the Applicant and the Respondent had an Advocate-Client relationship in the Constitutional Petition No. 381 of 2014 as consolidated with Constitutional Petition No. 430 of 2014 (Council of Governors & 3 others v Senate & 53 others, the Respondent submitted that it did not give any instructions to the Advocate/Applicant to handle any appeal that arose therefrom, specifically, the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
19. The Respondent submitted that in any event, being a public body, it is bound by both the Constitution and statute and that under section 135(4) of the Public Procurement and Disposal Act, no contract could have been formed between the parties unless the same is reduced in writing and signed by the parties.
20. The Respondent cited the case of Grana Limited v National Social Security Fund (Civil Appeal E028 of 2020) [2022] KEHC 61 (KLR) (Commercial and Tax) (31 January 2022) (Judgment, in support of its position.
21. In the circumstances, the Respondent/Plaintiff prays that the Application be dismissed with costs in its favour.
Analysis And Determination
22. I have considered the application, the affidavit filed in support thereof as well as the submissions by the Applicant/Advocate. I have also considered the replying affidavit filed by the Respondent and its written submissions. The main issue for determination in this application is whether the Advocate and the Respondent had an Advocate-Client relationship in respect of the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
23. It is settled that the jurisdiction of the Taxing Master to entertain & consider an Advocate/Client Bill of Costs is premised on the existence of an Advocate - Client relationship. The Court of Appeal in the case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Ltd, [2017] eKLR, stated as follows on the matter: -
“The nexus between the Advocate and his/her client is the Advocate/Client relationship which springs from instructions by the Client to the Advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill”.
24. It therefore goes without saying that the issue of whether or not there was a retainer must first be determined by a Taxing Officer before he embarks on taxing the bill.
25. In the circumstances, I find the submissions by the Applicant/advocate that the Taxing Officer had no jurisdiction to deal with the Preliminary Objection raised by the Client/Respondent unmeritorious. In as much as the primary duty of a Taxing Officer is to tax the Bill of Costs, it is my considered view that as part of discharging that mandate, a Taxing Officer is inherently clothed with the power and indeed the jurisdiction, to determine whether the Bill of Costs as presented, is properly before the court. A determination of whether or not there exists an Advocate-Client relationship is what provides an entry point for a Taxing Officer to tax a Bill of Costs. Where no such relationship exists, the court cannot move an inch.
26. In the case of Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal held that:
“...a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law lays down its tools in respect of the matter, the moment it holds the opinion that it is without jurisdiction.”
27. Based on the above, I hold and find that the Taxing Officer had the powers, and indeed the jurisdiction to deal with and determine the Respondent’s Preliminary Objection and submissions dated 4th April 2022 on the question of whether the court had jurisdiction to deal with the Bill of Costs.
28. The second question for determination is the argument by the Advocate/Applicant that instructions need not necessarily be in writing. That instructions can be inferred through the parties’ conduct.
29. It is indeed true, as correctly submitted by the Advocate/Applicant that instruction to an Advocate need not be in writing. This is the position that has been adopted by the courts, including in the case of Mereka & Company Advocates v Zakhem Construction (Kenya) [2014] eKLR where Ougo J states as follows; -
“From the email correspondence between the parties, the emails dated 2/8/2010 and 25/8/2010 from Albert Zakhem to Mr. Mereka, Mr. Zakhem acknowledges that he had gone through the proposal and further calls for financial proposal which he indicates was not provided in the said proposal. While in the later email he has indicated the extent of the intended project; from these it can implied that the client was agreeable to the process and the steps taken by the advocate in realizing the said project. It would then be superfluous for the client to claim that no instructions had been given or any retainer obtained.
It is trite law that a retainer need not only be in writing but can be implied from the parties' conduct on this am guided by the case of OHAGA –vs- AKIBA BANK LIMITED [2008] 1 EA 300, where it was held that, “a retainer may be implied where: (i) the client acquiesces in and adopts the proceedings; or (ii) the client is estopped by his conduct from denying the right of the advocate to act or from denying the existence of the retainer; or (iii) the client has by his conduct performed part of the contract; or (iv) the client has consented to a consolidation order.”
30. However, the burden of proof must be on the Advocate to establish and demonstrate that there was a retainer. See the case of Ochieng Onyango, Kibet & Ohaga Advocates, v Akiba Bank Ltd [2007] eKLR, where the court in agreeing with the decision in the Merka case (supra), also endorsed the position that “a retainer need not be written, it can be oral and can even be inferred from the conduct of parties. However, if there is no evidence of retainer, except a statement from the Advocate, which a client contradicts, the Court will treat the Advocate as having acted without authority from the client.”
31. In the instant case, have carefully reviewed the entire record but I am unable to find any evidence to warrant a conclusion that the Respondent, by their conduct instructed the Advocate/Applicant in the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 others.
32. Unlike in the Mereka case (supra), in the instant case, there is no correspondence from the Respondent’s representative/officer which is likely to lead to any conclusion that the Advocate/Applicant was indeed instructed by the Respondent as alleged In the Application. What I have seen is the Respondent’s letter dated 16th January 2017 to the Applicant informing the Applicant that it had no basis for raising any fee note against the Respondent in respect of the Civil Appeal No. 200 of 2015: The Senate & 50 others v The County Assembly Forum & 54 since no instruction had been issued by the Respondent to the Applicant in that matter.
33. Accordingly, I find no merit in the Application [Reference] dated 15th July 2022, which I hereby dismiss with costs to the Client/Respondent.
34. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 19TH DAY OF DECEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ochieng h/b for Ms. Msando ……..for the Advocate/Applicant
Ngugi …………………………….for the Client/Respondent