URBANUS K.& ASSOCIATES ADVOCATES VS TRIDENT INSURANCE COMPANY LIMITED

1. The applicant has filed chamber summons dated 05^th July 2024, being supported by the grounds set out on the face of the application as well as the facts deposed in the supporting affidavit thereof. The orders sought are as follows:
   1. Spent;
   2. That the honourable court be pleased to set aside the ruling by the taxing master delivered on 21^st June 2024. There exists a service level agreement (SLA) dated 07^th January 2023 between the parties;
   3. This honourable court be pleased to find that the taxing master lacked jurisdiction to tax the bill of costs in view of the existence of the service level agreement.
   4. That the costs of this application be provided for.
2. It was the applicant’s case that the respondent has raised invoices in accordance with the existing SLA and the same had been partially settled. That the respondent is attempting to earn legal fees multiple times over since the bill of costs was also taxed in its favour, regardless of the SLA. The applicant stated that it is willing to settle the balance of the legal fees as invoiced according to the SLA by the respondent.
3. In his supplementary affidavit dated 29^th July 2024, counsel for the applicant deposed that before the taxing master’s ruling, he had filed an objection to taxation of the bill of costs on the same grounds as are deposed in the application herein. That the taxing master did not give any directions regarding the objection as the case should be under Rule 11(2) of the Advocates Remuneration Order. That to date, the taxing master has not given reasons for the ruling as provided under the said provision, but the applicant has already filed a reference since the taxing master did not have jurisdiction to tax the bill.
4. That according to Rule 11(2) of the Advocates Remuneration Order, time starts to run when the taxing master gives reasons for the findings and not when the ruling is delivered. That the respondent was estopped from filing a bill of costs given that he had already received part payment of the legal fees from the applicant on account of the SLA. He urged that the taxing master should have been guided by section 120 of the Evidence Act which would forbid raising a bill of costs when the advocate had already billed the client directly.
5. The application was canvassed by way of written submissions.
6. The applicant argued that the reference was filed within time given that the taxing master did not give reasons for the decision so that time starts running. That the applicant instructed his advocates to oppose the bill of costs while it was late and so soon before the taxing master’s ruling. That the applicant has drawn the court’s attention to an existing SLA which dictated the respondent’s fees and how the same were to be billed. The respondent proceeded to bill the application based on the SLA but also filed the bill of costs. It was the applicant’s argument that the SLA is a contract that should not be re-written by the courts.
7. It placed reliance on clause 42 of the SLA and 4(1) of the Arbitration Act and stated that any disputes arising from the SLA should be subjected to arbitration. Further reliance was placed on the cases of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another (2001) eKLR and Njogu & Company Advocates v National Bank of Kenya Limited (2016) eKLR. It was its case that the respondent already received Kshs.10,000/= as billed under the SLA thus he should not receive money billed under the bill of costs. Further reliance was placed on section 120 of the Evidence Act.
8. The respondent submitted that following the ruling of the taxing master, the reference was filed 3 days late since under Rule 11(2) of the Advocates Remuneration Order, the 14 days started running after the ruling. He relied on the case of KCB Bank Limited & Another V Yeswa Antonny Joseph (2022) eKLR where the court affirmed that in some cases, the taxing master’s reasons are captured in the ruling delivered during taxation. He argued that there is no error in principle raised in the reference thus the application lacks merit. Further reliance was placed on the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (2005) eKLR and he urged that the reference fails to raise any error in principle during taxation. The respondent stated that the SLA did not state the billing structure with finality, thus it should not dictate how the client should be billed.
9. He relied on the cases of Corporate Insurance Company Ltd v Advocates (Miscellaneous Application 033 of 2020) [2022] KEHC 545 (KLR), Kenya Orient Insurance Ltd v Muri Mwaniki & Wamiti Advocate (Miscellaneous Application 170 of 2013) [2015] KEHC 4026 (KLR) and Mwangi Keng\'ara & Co. Advocates v Invesco Insurance Company Limited [2019] eKLR. He urged that the reference herein was filed out of time and without leave of court, thus it should be dismissed. That even if the application were to be considered, the same does not raise any errors on the part of the taxing master to warrant setting aside of the orders.
10. The issue for determination is whether the application has merit.
11. The applicant herein seeks to have the ruling on bill of costs set aside. It is challenging the jurisdiction of the taxing master to tax the bill of costs on account of an existing SLA between itself and the advocate/respondent. It is imperative that the party who challenges the findings of the taxing master on bill of costs, gives a notice to the taxing master within 14 days of the ruling, indicating the items he contests and the reasons for the objections. Rule 11 of the Advocates Remuneration Order provides:

“(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a Judge by chamber summons which shall be served on all the parties concerned, setting out the grounds of this objection.

(3) Any person aggrieved by the decision of the Judge upon any objection referred to such Judge under subsection (2) may, with the leave of the Judge but not otherwise, appeal to the Court of Appeal.”

1. In this case, the bill of costs was taxed through a ruling delivered on 21^st June 2024. Through a notice dated 01^st July 2024, the applicant filed an objection to the taxed costs on the grounds that the taxing master lacked jurisdiction to tax the bill of costs because the respondent is bound by an SLA on billing of legal fees. There were no directions given for the objection neither did the taxing master respond to the objection. On 04^th July, a certificate of taxation was issued, then the application herein was filed by way of a reference. And the matter was placed before the judge. According to Rule 11(2) of the Advocates Remuneration Order, the application herein should be based on the reasons given by the taxing master for the findings of the bill of costs. That is to say that the taxing master ought to have responded to the objection raised by the applicant before any reference is filed. The 14 days envisioned under Rule 11(2) of the Advocates Remuneration Order start to run once the taxing master has responded to the objection raised by the applicant.
2. The respondent argued that the reasons for taxing the bill of costs are incorporated in the ruling delivered by the taxing master. In my view, the objection was raised within appropriate time but it did not receive attention as the law prescribes. In fact, it is immaterial to argue whether or not the application herein was filed out of time since the glaring issue is that the taxing master did not give reasons as requested through the objection.
3. Therefore, I hereby order that the matter be referred back to the taxing master to respond to the objection raised by the applicant before the reference can be made relevant. In the circumstances the application is hereby struck out with no orders as to costs. 
4. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.