Rachier&Amollo Advocates LLP VS Estate of Gerishon Kamau Kirima

1. The firm of Rachier & Amolo Advocates LLP (the advocates) filed an advocate-client bill of costs on 2^nd July 2018 against the estate of Gerishon Kamau Kirima. The advocates sought Kshs. 666,391,392/= less Kshs. 4,000,000/= which had been deposited. Instruction fees was Kshs. 300,000,000/= plus getting up fees of Kshs. 80,762,875/=.
2. The administrator of the estate of the deceased (Anne Kirima) then filed an application by way of Notice of Motion dated 8^th June 2021 seeking an order that the advocates bill of costs dated 2^nd June 2018 be struck out and the costs of the cause be borne by the advocates.
3. Vide a ruling dated 2^nd June 2022, Honourable Justice A.O. Muchelule (as he was then) dismissed the administrator’s application dated 8^th June 2021.
4. The Respondents through the firm of P.C. Onduso & Company then filed an application dated 7^th October 2022 seeking the following orders;
5. Spent.
6. Spent.
7. THAT this Honourable Court be pleased to review and or vary its ruling delivered on 2^nd June 2022.
8. THAT this Honourable Court be pleased to make any other orders it deems fit and just in the circumstances; and
9. THAT the costs of this application be provided.
10. The Summons is brought pursuant to Order 45 Rule 1(a), Order 51 Rule 1, Order 52 of the Civil Procedure Rules, 2010 and under Sections 1A, 1B and 3 A of the Civil Procedure Act and all enabling provisions of the law and is supported by the affidavit of  Stephen Kamau Kirima  sworn on 7^th October 2022 on behalf of the other Respondents. He filed a further affidavit sworn on 24^th April 2023.
11. Their case is that, they were not served with the proceedings of this case; they learnt of the existence of this matter on 15^th September 2022 through Teresia Wairimu, the co- administratix of the estate. That each beneficiary has their own advocates who should have been served. He averred that each beneficiary with an advocate is responsible for paying advocates fees from their own resources and not from the estate.
12. That if the bill is taxed as per the directions of 2^nd June 2022, their interest in the estate will be prejudiced considering the fact that they were not aware of these proceedings. Further, that Justice Musyoka in High Court Succession No. 1298 of 2011 gave directions that legal fees for advocated acting for the parties will be determined during confirmation.  He deponed that the advocate bill of costs is premature, irregular and incompetent since the succession cause is still pending in court. He urged the court to allow this application. That if the orders sought are not granted, they stand to suffer extreme prejudice.
13. The application was supported by Bishop Anne Kirima, one of the beneficiaries who filed a replying affidavit dated 21^st July 2023. She averred that, the issue of payment of legal fees had been determined by the court when it gave an order that legal fees will be determined during confirmation stage. That each beneficiary with an advocate should pay their legal counsel from their own resources and not from the estate.
14. The advocate opposed the notice of motion by filing a replying affidavit sworn by Dr. Paul Otiende Omolo on 9^th March 2023. He also filed grounds of opposition dated 17^th October 2022. He averred that the current application is meant to delay the prosecution and determination of the bill of costs filed on 22^nd June 2018. Counsel argued that all the beneficiaries were served with the bill of costs and the advocates representing each beneficiary participated in the hearing.
15. That further delay of the bill of costs since 2018 is prejudicial to the advocate. He deposed that none of the Respondents has locus to file the current application because there is an existing administrator of the estate who can bring suits on behalf of the estate and the other beneficiaries. That the issue before A.O Muchelule (as he was then) was whether the estate of the deceased had instructed the advocates to act for it. The court delivered a ruling in favor of the advocates and held that legal fees shall be borne by the estate. That the issues raised in the current application have been dealt with. Also that the issues raised do not fall within the permitted grounds of review under Order 45 of the Civil Procedure Rules.  Further, that the issues raised can only be dealt with in an appeal. He urged the court to dismiss the Respondents application with costs.

1. The application was canvassed by way of written submissions.  The Respondents filed written submissions dated 28^th April 2023. The advocates’ submissions are dated 21^st July 2023.
2. Parties highlighted their submissions before me on 13^th March 2024. Mr. Onduso, counsel for the 1^st, 2^nd,3^rd, 4^th and 6^th Respondents submitted that the Respondents are beneficiaries of the estate with a substantial stake in the estate and therefore have locus to file the current application. That the advocate served the Respondents’ advocates but their advocates did not inform their clients that there was an application before court. He submitted that the mistake of the advocates should not be visited upon the clients. He further submitted that for the Respondents an appeal was impossible because the Respondents had not been enjoined in the suit . He urged the court to allow the application on the ground that this is a high value estate and the stakes are high.
3. Counsel for the Administrator submitted that the bill of costs involves the advocate and the Administrator. That the other beneficiaries have a right to be heard since they were not involved in the taxation cause which affects the estate of the deceased. That the advocates bill of costs is in breach of the ruling of Justice Musyoka which directed that no further applications shall be filed pending determination of the succession cause.
4. It is submitted that the respondents were aware of the bill of costs and they were indeed served. Counsel submitted that whether the bill of costs was served on the Respondents is a matter to be determined by the taxing master and not this court. That the Respondents were served and were aware of the bill of costs. Counsel submitted that an affidavit of service was filed to that effect. That the administrator of the estate did not need to consult the other beneficiaries of the estate to retain an advocate to represent the estate of the deceased. It was submitted that the issues raised by the Respondents would have been dealt with by way of appeal and not by an application for review. Counsel urged the court to dismiss the Respondents application.

ANALYSIS AND DETERMINATION

1. The main issue for determination is Whether the ruling of 2^nd June 2022 should be reviewed.
2. The law on Review is founded on the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. Section 80 of the Civil Procedure Act provides as follows: -

“Any person who considers himself aggrieved-

1. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
2. by a decree or order from which no appeal is allowed by this Act,

May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

1. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows:-

“Any person considering himself aggrieved-

1. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
2. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.”
3. In the case of Republic v Advocates Disciplinary Tribunal Ex-Parte Apollo Mboya (2019) eKLR, Mativo J. held that: -

“A clear reading of the above provisions shows that Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. They lay down the jurisdiction and scope of review. They limit review to the  following grounds-  (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be  made without un reasonable delay.

1. The first ground is discovery of new and important matter of evidence. In their pleadings, the Respondents did not raise any issue of discovery of new and important matter of evidence which was not within their knowledge and could not be produced on or before 2^nd June 2022. 
2. Another consideration is whether the respondents have proved that there was a mistake or error apparent on the face of the record. The error must not be matter of argument, or allegation or implied, it must be apparent on the face of the record, that is obvious on the face of the record.  From the record the respondents have not alleged an error apparent on the face of the record. This ground consequently fails.
3. I have also considered whether the respondents have shown sufficient reason to warrant a review to make this Court review its order. In arguing the application, the respondents stated that they were not served with the bill of costs and therefore, they were not able to respond to it. The court notes that the bill of costs is yet to be determined by the taxing master. Whether the bill of costs ought to have been served or was served on the Respondents is an issue to be determined by the taxing master and not this court.
4. I have also considered the ruling of Musyoka J. in Succession Cause No.1298 of 2011, the applications the directions relate to applications that would stand in the way of the hearing of the summons for confirmation. This is not such an application. The order of Musyoka J therefore would not apply to this application.
5. Consequently, the notice of motion dated 7^th October 2022 is dismissed with no orders as to costs.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this …………17TH ……………… day of …May………….2024