George Miyare t/a Atonga Miyare & Associates Advocates v Evans Gor Semelang’o [2017] KEHC 2097 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW  DIVISION

MISCELLANEOUS APPLICATION NO.  40 OF 2015

IN THE MATTER OF THE ADVOCATE ACT

AND

IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT

BETWEEN

GEORGE MIYARE t/a

ATONGA MIYARE & ASSOCIATES ADVOCATES …… .APPLICANT

VERSUS

EVANS GOR SEMELANG’O…………………… .RESPONDENT

RULING

1. This decision comprises two verdicts, one ruling and a judgment. By an application dated 10th February 2017 filed on 13th February, 2017 the  advocate/applicant Ms George  Miyare  t/a  Miyare  and  Company Advocates  seeks from this court  orders that:

a. Judgment be entered for  the  client/respondent for the sum of  kshs  3,602,704. 00 as  appears  in the  certificate  of taxation dated  17th January,2017  with interest at  18% per annum  from the date   of taxation until payment in full.

b. Costs.

1. There is also an application by the respondent/clientEVANS GOR SEMELANG’O.  It is dated  20th January  2017  seeking orders  that:

a. the ruling  and  reasons for taxation  by the taxing officer  dated  22nd December  2016 be set aside and  or varied  and the  respondent’s advocate/ client  bill of  costs be  taxed  afresh; that there be stay of  the taxation  ruling and  reasons  thereof pending   hearing and  determination of the reference  herein:

b. Costs.

2. On 1st  March 2017  the parties  agreed  and this  court directed that  the two  applications be  heard together.

3. Parties therefore  complied with the  court’s  directions to file their  responses s and  written submissions  which they  exchanged  and  adopted  as canvassing their respective applications with no  highlighting.

4. This  ruling  was  to be  delivered on  26th July  2017  but the court   was on leave  that had earlier  not been anticipated  hence the reschedule.

5. I will first determine the application filed by the  client/respondent  dated  20th  January  2017  as it  was   the  earlier application (first in time) before deciding on the application filed by  the advocate/applicant dated  10th February  2017   being the latter application.

6. The application dated 20th  January 2017  challenges the taxation ruling  and  reasons  given by the  Taxing Master  Mrs E. Mburu  on 22nd  December, 2016.  The application by way of chamber summons is brought under the provisions of paragraph 11 of the Advocates Remuneration Order and is otherwise known as a Reference.  The application/Reference   was filed on 23rd January 2017.

7. There are  15 grounds  upon  which the  reference  is premised  and  supported by  an affidavit  sworn by the  client/respondent’s  advocate Mr Lawrence Oigoro Nyangito  sworn on  20th January  2017.

8. The Reference is vigorously opposed by the advocate/applicant who filed a replying affidavit sworn by Charles Midega Advocate On 10th February 2017 and filed in court on 13th February 2017.  However, of  great  significate to proceedings  of this  nature  is the  applicable law  and therefore  the court must  first  determine  whether the  Reference  as  filed  was (1)  filed in time  and or  in accordance  with the stipulations  under the Advocates Remuneration  Order before delving  into the  merits  thereof.

9. This court  notes that the costs which  are being  challenged  were advocate/client taxed costs which were taxed by the  Taxing Master  on 22nd December  2016 Honourable  E. Mburu   ( Deputy Registrar) of this court.

10. The challenge by way of chamber summons, to the said  taxation   was filed on  23rd January  2017  which is one  month (30) days  and one day thereafter.  Paragraph 11 of the Advocates Remuneration Order provides for References in respect to the taxing officers’ decisions.

11. The paragraph states:

1) Any party who objects to the decision of the taxing officer may within 14 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 the decision  on those  items  and the objector  may within  14  days from the  objector  may within  14  days from the receipt of the reasons  apply  to a judge by chamber summons, which shall be served on all parties concerned, setting out the grounds of his objection.

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

4) The High Court  shall have  power in it discretion  by order to enlarge the  time fixed  for  in Sub paragraph (1) or  Sub paragraph (2)  for taking  of any  step:  Application for such  order may be made by  chamber summons upon giving to every other  interested party not less than 3 clear  days notice in writing  or as the court may direct  and  may be  so made not withstanding  that the time sought to be enlarged  may have already expired.

12. The taxing officer’s ruling made on 22nd December 2016   was detailed with reasons for taxation.  Therefore, it was not difficult for the client to simply file an objection and thereafter a reference without asking for reasons for taxation within the stipulated period.

13. In addition, there is no application for enlargement of time within which the reference ought to have been filed as stipulated in paragraph 11(4) of the Advocates Remuneration Order.

14. Between  22nd December  2016  and  23rd January  2017  when the chamber  summons for  challenging the taxation  was filed, there  was  no objection  filed  with regard  to any specific items that the respondent/client  wished to challenge  in the subsequent  reference by way  of chamber summons.

15. Such objection ought to have  been filed within 14 days  after the decision by the taxing officer, by giving  notice to  the  taxing officer  of the items  of taxation to which the client objects.

16. In the instant case,  the  applicant  simply  filed an  application  challenging  the   taxation made on  22nd December 2016  and urging  the  court to  vary/set aside the  said  taxation.

17. Although it would be  superfluous  to ask for  reasons for the taxation  where such  reasons,  as is in this case, were given by the taxing officer in her detailed ruling on taxation, the respondent/client was obliged to file an  objection to the specific  items of  taxation that he had  issues with,  within  14 days  of the date of taxation.

18. In other words, before one files a reference, he must have lodged a notice  of objection to the specific  items within  14 days  of the date  of ruling on  taxation  and  where such time  of  14 days  has  elapsed  then an application  for enlargement  of time  can  be filed to the judge for consideration.

19. In this case, no such objection was filed with the taxing officer and no application for enlargement of time for filing objection was filed with the judge.  It follows that the Reference herein as filed is fatally incompetent as it is not filed on the basis of any objected to items.  It is also filed outside the stipulated timeframe.

20. Accordingly, the reference is amenable for striking out.  The same is hereby struck out as filed on 23rd January 2017 with an order that each party do bear their own costs.

21. Having  disposed of the  “Reference” filed on  23rd January  2017 striking it out, I now proceed  to determine  the application dated 10th  February  2017 filed by the advocate  seeking for  judgment   to be  entered  against the respondent/client in favour of the  applicant/advocate in accordance with the certificate  of taxation dated  17th January  2017  as per the  taxation done on  22nd December  2016  by the Deputy Registrar/Taxing  Officer E. Mburu Honourable.  That certificate of taxation had not been set aside by any court and there is no dispute as to the retainer of the advocate by the client.  The amount taxed was kshs 3,602,704. 00.  The client  also never  filed any  replying  affidavit  contesting the  taxed costs and  his attempt  to challenge  the  taxation  has been disposed of  by the court  striking  out his  application dated  20th January  2017.

22. There  is nothing  on record  to show that the  taxing officer  exceeded  her powers in taxing  the  costs  and  a certificate  of taxation issued  on 17th November 2017.

23. Under Section 51(2) of the Advocates Act Cap 16  Laws  of Kenya:

“ The certificate of  the  taxing  officer by whom any bill has  been taxed  shall unless  it is set  aside or  altered  by the court, be final  as to the amount  of the costs  recovered  thereby; and  the court may make such order  in relation thereto  as it thinks fit, including  where  the retainer  is not disputed, an order  that judgment  be entered for the sum certified  to be  due with costs.”

24. There is absolutely no ground upon which the advocate should not be  given his just dues  having  followed  due process  including mediation by Professor  P.L.O Lumumba which mediation collapsed necessitating the taxation to proceed.

25. Accordingly, I find the application by the advocate merited. I enter judgment for the applicant/advocate  against  the respondent/client  in the sum of  kshs  3,602,704  as per the  Certificate  of Taxation dated  17th January 2017.

26. The applicant  also prayed for  interest at  18%  per annum  from the date of taxation until payment in full.  Rule 7 of the Advocates Remuneration Order stipulates that.

“ An  advocate may charge  interest  at  14%  per annum  on his  disbursements  and  costs, whether  by scale  or otherwise, from the expiration of one month  from the delivery  of his bill to the  client  provided  such  claim for  interest  is raised  before the amount  of the bill  has been  paid  or tendered in full.

27. The bill of costs  as taxed  was without  any interest  and  no such interest at 18% per annum was ever sought on disbursement  in the bill of  costs  dated  10th  September  2015.  An advocate  who files  his bill  of costs  without  first raising  the issue  of interest  with his client  forfeits  that interest as  stipulated  in Rule  7 above  and  even  if the issue  was raised  before  taxation, the  maximum  chargeable  interest  would be  14% per annum and  not more.

28. That being  the case, this court  would only  award  any interest  on taxed  costs at  court rates  from the date of  taxation  which is 22nd December  2016 until payment in full.

29. Accordingly, I enter  judgment  for the advocate/applicant  for shs  3,602,704. 00 plus interest at court rates from 22nd  December  2016  until payment  in full.  I order  that a  decree be issued to that effect.

30. Costs are in the discretion of the court. I note that the  application  of this nature  is intended to  conclude  all the pending  issues  between the  parties  and therefore  it would  not be appropriate  to restart  another  process of taxation  of costs  by awarding  further  costs  which will  escalate  the  dispute.  In the end, I order  that each party shall  bear  their own costs  of  the application  by the advocate dated  10th February  2017.

Dated, signed and delivered in open court at Nairobi this 8th day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Oriwo advocate h/b for Mr Miyare for advocate

N/A for the Client

CA: George