Hezekiel Oira T/A H. Oira Advocate v Kenya Broadcasting Corporation [2015] KEHC 1352 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO.  36 & 35   OF 2011

HEZEKIEL OIRA

T/A H. OIRA ADVOCATE ……………...…………………ADVOCATE/APPLICANT

VERSUS

KENYA BROADCASTING  CORPORATION …….......……………RESPONDENT

RULING

Before this court for determination is a Notice of Motion dated 11th July 2012  fileD on 13th July 2012  by Hezekiel  Oira T/A H.Oira/  advocate  against  the Kenya Broadcasting  Corporation/  client.

The application is brought under the provisions  of Order 45 Rules  1 and 2  of the Civil  Procedure  Rules, 2010, Sections 1A,1B,3A and 80  of the Civil Procedure Act  and all the enabling    Provisions of the law.

The advocate/applicant seeks  from this  court orders that:

Spent

That  the court be  pleased to review, vary and or set  aside  the order made  on the 27th day of June, 2912 striking out  the Bill of Costs  in this matter and HC Misc Application No. 35 of 2011 and that the Bills of Costs  be taxed  on merit.

That costs  of this application be  provided for.

The application is predicated on the grounds  that:-

The Bill of Costs herein  and in the HC Miscellaneous Application  35/2011 were struck  out on account that the advocate/applicant had no valid  instructions  to act for  the client/respondent.

That the  client/respondent had abandoned  that line  of argument, and had conceded  to the taxation of the Bill of Costs  on their  merit; and hence the submissions  made by  the parties  were limited to  the merits  of the said Bill of Costs.

That  there is   an error  apparent  on the face  of the record  in that the taxing  master based  his ruling on an  issue  already abandoned by the client  respondent, and in particular  in relation  to retainer ship of the advocate/applicant.

That issues of retainer ship of an  advocate’s services by a client  when in  dispute can only be dealt with  and determined  by the judge  of the  High Court  and hence  the error on the  ruling herein.

That it  is in the interest of justice and fairness  that parties be  heard  on an issue  before determination  of the same by the court, and hence the need  to review, vary and or set  aside the  ruling herein as parties  were  never heard  on the issues relied  upon in striking  out the same.

The application is further supported by the supporting affidavit  of Hezekiel Oira  Advocate  applicant sworn on 11th July 2012.  Mr Oira deposes  that when the matter came before  Honourable  Ougo ( as she then was ) taxing  officer on  9th July 2011, an  order was made that him and Mr Waithaka Waihenya do personally  appear in court on              21stAugust 2011 for cross  examination on the contact  of their  respective affidavit.  However, the  matter was not listed on that  day and another  fresh date was to be obtained  from the registry.  That the law of firm of Kale  Maina & Bundotich Advocate  took over the conduct  of the matter on behalf of  the client  on 25th November 2011 replacing Mr  Paul Jilani advocate of Kenya Broadcasting Corporation.  That  Mr Oira  was  informed  by his counsel on record that Mr Bundotich  informed  his counsel that  he had  advised  his client (Kenya Broadcasting Corporation) to abandon  the contest of retainership and  focus on the taxation of the Bill of Costs  on merit  and based on that understanding, the parties  appeared  before the Deputy Registrar  on 16th December  2011 and  took directions  to file their  respective submissions  on the Bill of Costs  and the  matter was fixed for taxation on 27th January 2012. That the parties exchanged submissions  omitting  reference  to that ground of retainer ship  and that   therefore  it was  erroneous  for the taxing  officer to strike out  the  Bill of  Costs  on account of  retainer ship  which matter she had no jurisdiction  as it  can only be determined  by  a judge  of the High Court.

In their written submission, the advocate/applicant submitted, reiterating  what was  contained  in the application and supporting  affidavit that  when the  parties  filed  their submissions to  dispose  of the Bill  of Costs, they  did not address  the court on  the issue of  retainer ship since they  had in principle ‘agreed’ not to pursue  that  issue.  That  that was evidenced by the respondent’s  counsel  proposing   that the advocate/client  Bill of Costs  be taxed  at shs 18,145 for  the services rendered.

The advocate  laments that  Honourable Ndungu Deputy Registrar  erroneously  struck out  the bill of costs  on 27th June 2012.

Further, that the application herein is  in order as Rule 11 of the  Advocates Remuneration Order on  filing  references  is only applicable  where  a bill is taxed and a party  is seeking to challenge  that taxation, not like in the instant  case where there was no taxation.  Further that  in any case the Deputy Registrar failed to invoke Rule 13 by way  of calling  evidence  to clear the issue  of retainer  in light of the directions by Honourable  Ougo that parties  be cross examined  on the contents  of their  respective  affidavits  before the  bill of costs  could be  taxed.

Counsel for the advocate submitted that this court’s duty is to do substantive  justice to the parties without  undue delay as espoused  in Article 159(2)(b) and (d)  of the Constitution and Sections 1A, 1B and 3  of the civil Procedure  Act.  He further  submitted that there shall be no prejudice  to the respondent if the bill of costs is taxed  afresh since there  is no question  about retainer.

The respondent/client filed their written submissions dated                 10th December 2012 on the same day reiterating  their  grounds of opposition.  They contended that the application for review as sought was incompetent.  They    also supported  the  taxing  officer’s order  of 27th June 2011 striking out the advocates bill of costs.  The client/respondent  contended  that the application is fatally defective  as the order for review  cannot  be granted  in the absence  of an annexture  in the order which is  sought to be reviewed.

Further, that an order or ruling arising  from taxation cannot be  reviewed  and that  a party who is  aggrieved  can only file  a reference  to the High Court.  Finally, that a reading of Order 45  Rule (1) (a) and (b) of the Civil Procedure Rules that “appeal” does not include  reference.  They urged this court to dismiss the application by  the advocate  with costs.

I have carefully considered  the application  by the advocate, which invokes Section 80  of the Civil Procedure Act and Order  45 of the Civil Procedure Rules.

In my view, the main issues for  determination  are:-

Whether  the application for review  as filed seeking for review  instead  of a  reference  is competent before this court.

Whether  the taxing officer had  the  jurisdiction  to consider the issue of  retainer.

What  orders should this court make.

On the issue  of whether   the application herein  as filed is  competent  before the  court, the respondent contends  that as the order by the taxing  master  concerned taxation of an advocate/client/bill of costs  then the said  order could only be challenged  before a judge  by way of a reference  initiated by way  of a chamber Summons as required  by the provisions  of paragraph 11(2) of the Advocates Remuneration Order  and not by way of  a review  under the provisions  of Section 80 and Order 45 Rules 1 of the Civil Procedure  Act  and Rules respectively.

The advocate  on the  other hand  maintains  that the Advocates Remuneration  order could  only apply where the  bill of costs  was  taxed  by the taxing officer and  the order of  taxation being objected  to. In his view, that is when a reference pursuant to paragraph 11 (2) of Advocates Remuneration Order could be  lodged to  review  the decision  on taxation, and not  when what  is being challenged  is an order  striking  out the entire  bill of costs.  None of the parties’  advocates in their respective  submissions  referred  this court to  any case  law.

Paragraph  11 of the Advocates  Remuneration Order provides that:

Where  a party is aggrieved  by  the decision of   a taxing officer, he is required   to object  in writing  by requesting  the taxing officer  to give reasons  for the items of taxation  that he is objecting  to and thereafter  file reference  to this court.

In the present case, it is  apparent  that  the respondents  were objecting to the validity  of the entire  bill of  costs  as filed, by their grounds  of  opposition  and replying affidavit  sworn by Waithaka Waihenya  the respondent’s  Managing  Director, contending  that the  advocate  was an employee of the  corporation at the time as an in house  lawyer  and that the  purported  memo by William Ikapel giving    him authority   to act as  an independent   contractor  was a fraud as it  was not authorized by the corporation.

In my view, the applicant was  required to file a reference  to this  court to challenge  the decision  of the  taxing officer and not an  application for review  under Order 45 of the  Civil Procedure Rules and Section 80  of the Civil Procedure  Act.

Further, the advocate  would only be  so entitled to apply to this court for review  or appeal, under Section 80 of the Civil Procedure Act  and Order 45  of the Civil Procedure  Rules if he  was  able to satisfy the court  that the  decision  rendered  by the taxing officer  was the kind of decision  that can  be appealed  to this court, under Section 79G of the Civil Procedure Act or reviewed  as provided  by Section 80  and Order 45  of the Civil Procedure  Act and Rules respectively.

Under the said Paragrapgh 11, of the Advocates Remuneration Order, an “appeal” against the decision of a taxing officer   in a taxation matter is  not provided for.  The only procedure  provided for an “appeal” or “review” against  the decision  of a taxing officer  is by way of a reference.

In my view, the applicant cannot  invoke  the Civil Procedure  Act and                   Rules made  there under  to circumvent  the procedure  provided under  the Advocates  Act  and the Advocates Remuneration  Order  in regard  to review  of a decision  of the taxing officer  in an advocate/client  bill of costs  where the taxing  officer exercises  the special jurisdiction conferred  upon him  or her under the  Advocates Remuneration Order and  NOT in his capacity as the Deputy  Registrar  of this court.

The Deputy Registrar  exercises  his jurisdiction  in accordance   with the  powers given to him under the Civil Procedure Act  and the Rules  made there under .  The two roles of the said officer of the court  are separate  and distinct.  The  two jurisdictions  and their separate  procedures  are mutually exclusive.  One procedure  cannot be substituted  for  the other.  The procedure adopted by the advocate  applicant in this matter was  therefore  in my view, an abuse of the court  process and procedures.

The advocate’s Notice of Motion creates a  presumptions  that he had  a right of  appeal  pursuant  to Section 79G  of the Civil Procedure Act and therefore  Sections  65  and 75  of the Civil Procedure Act on orders  and Decrees  that are appealable  as a matter of  right or with leave of the court  making the  order comes  into play.  Perhaps that is the reason  why upon the ruling being  delivered on 27th July 2012, he sought  leave to appeal  against the decision of the taxing officer.

In cases where  there is  a right of appeal, whether  by way  of obtaining  leave or automatic  right, then  Order 43  of the Civil Procedure  Rules apply.  Equally, under Section  80 of the Civil Procedure Act and Order 45 (1) of the  Civil Procedure  Rules, the latter being the hand maiden  to Section 80 comes into play, as an alternative  to an appeal under Section 79G of the Civil Procedure Act.

In the instant case, where  the Deputy Registrar  is exercising  the special  jurisdiction as taxing officer, a decision  whether  made on the actual items  of  the itemized  bills  or striking out of  the bills or  striking out of  the bill of costs altogether, is a decision  of the taxing officer  in that  capacity and  therefore  it is my humble  view that  there  is no provision  for an ‘appeal’ or “review” per se  under  the Advocates  Act, which is the legal regime  governing  taxation  of costs  whether  party and party  or Advocate/client .

The  Advocates Act, in my  most  considered  view, is a  complete statute  in itself  on matters  of taxation of  costs  and as  such, a party cannot  invoke  the provisions of the Civil Procedure  Act  or Rules made there under  for purposes of challenging any decision of the taxing officer.

I am fortified by the Court of Appeal  decision  in the case Machira & Company Advocate  vs Arthur K. Magugu (2012) e KLR  where the  Court of Appeal  stated:

“ Appeals  require the tying of proceedings  compiling of records  of appeal and hearing of the same in open court.  Reviews, however, would require provisions a kin to those of Section 80 of the Civil Procedure Act, of discovery  of new  and important matters, errors  on the face of the record and so on.  In our view, the Rules  committee intended  to avoid all that and  provide for a simple and  expeditious  mode of dealing with  the decisions  on advocates bill of costs through references under Rule 11 to a  judge  in chambers.”

The Learned Judges of the Appellate court  further held:

“ 10.  the appellate jurisdiction of any court is a creature of the statute and has to be exercised  in accordance  with the  provisions of the statute  creating it.  With regard  to the advocates bills of  costs, we  agree with  the decision  of Ringera  J ( as he then was ) in Machira Vs Magugu (1) that the Advocates Remuneration Order is  a complete code  which does  not provide for  appeals from the taxing master’s  decisions.  Rule 11  thereof  provides for ventilation of grievances from  such decisions  through references  to a  judge in chambers.  The effect  may be viewed  as an appeal or  a review  but these  being legal terms in respect  of which different  considerations  apply, they should not be loosely used….”

The above holding which I agree  with wholly  was also upheld by  Havelock J ( as he then was ) in HC Misc. 655/2012 that there  is no appeal from a taxing officer’s decision  except  under the provisions of  Rule 11  of the Advocates Remuneration  Order.  In that case, the learned  Judge  was faced with the respondent  arguing that the question of retainer ( just as was argued  in this case before me) having been decided  upon by the taxing officer, it was their opinion that the applicant  could not  raise the same  as a reference, except  by way of  an appeal or an application for review, if applicable.  The respondents  had further argued that the applicant’s  bill of costs  not having been taxed  by the taxing officer, but instead, the taxing officer having declined to  tax it on the grounds that there was no retainer  or instruction, the  Advocate’s Remuneration Order could not  apply as  the same only dealt with an objection to a decision on taxation and therefore, appealable to the Court of Appeal.

Further, it was also argued that it was only after taxation that the Judge  could be  asked  by way of reference  to review  the decision of the taxing  officer.

From the above  enunciations, I am inclined  to find that  the application herein  as filed under Section 80 of the  Civil Procedure  Act and its hand maiden Order 45 of the Civil procedure Rules is incurably  incompetent, not for want  of form  but statutorily, the  applicant has deliberately overlooked  the established  procedure  under the  relevant statute  for challenging  decisions  of the taxing officer   and instead imported  the Civil Procedure Act and Rules  which is  a totally different  legal regime.  A merger thereof would  in my view bred confusion. It is an abuse court process. That, in my view, cannot be said to be a mere procedural technicality which Article 159 of the Constitution was meant to cure.

In the Court of Appeal decision of Kimani Wanyoike  vs Electoral  Commission of Kenya CA 213/95 (un reported ) the Court of Appeal held:

“ Where there is a law prescribed by either  a Constitution  or an Act  of Parliament governing a procedure  for the redress  of any particular grievance  that procedure  should be strictly  followed.”

In another Court of Appeal decision of Speakerof the National  Assembly vs Karume (2008) 1 KLR 425  the Court reiterated its earlier decision in Kimani Wanyoike case(supra) that:

“ In  our view, there is  considerable merit   in the submission that where there is  a  clear procedure  for the redress of any particular  grievance  prescribed  by the Constitution  or an Act of Parliament, that  procedure should be strictly  followed.”

On the strength  of all the above  decisions, it is my humble  view that  paragraph  11 of the Advocates Remuneration Order  cannot be short circuited  by filing  for  review  under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure  Rules.

The above  decision was made prior  to enactment  of Article 159(2) (d)  of the Constitution  which espouses  that  justice shall be done without undue regard to procedure  technicalities.  Does it  hold today?  To answer  the above question In Abok James  Odera T/A  A.J. Odera  & Associates  vs John Patrick  Machira  T/A Machira & Company Advocates (2013) e KLR, the Court of Appeal, very  recently, per Githinji, Nambuye  & Koome  JJA  in deliberating  on whether  to import  the oxygen principle and or Article  159(2) (d) of the Constitution to achieve a fair, just, speedy, proportionate time and cost saving  disposal  of cases  before it  when faced with a situation  where they  had to decide  whether  to breathe life into an otherwise incurably  defective appeal, the Court, citing  with approval  the case and decision of Karuturu Networks Ltd & another  vs Dally Figgis Advocates, Nairobi  Court of Appeal CA NO. 293/2009  where it  was held that:

“ The application of the overriding  objective principle  does not  operate  to uproot  the established  principles  and  procedures  but to  embolden the court  to be guided  by a broad  sense  of justice  and fairness and that  in interpreting  the law or  rules made  there under, the court is under a duty to ensure that the application or interpretation being given to any rule will facilitate the just, expeditious, proportionate  and  affordable  resolution of appeals.”(EMPHASIS MINE)

Applying the decision above to  this review application.  I am satisfied  that Article 159(2) (d) does not  oust the jurisdiction of this court to determine that the application was filed under  the Civil Procedure  Rules when there  are clear  procedures under the Advocates  Act, and is therefore incompetent in limine  suitable for striking  out.

In  the Karuturu Networks case, (supra), the court  was further categorical that:

…”  it is a basic  principle  of procedural law that appeals to the High Court  only  lie where a right  of appeal has been conferred  by statute.  Secondly, I as understand  the practice  relating to taxation of  bill of costs, any complaint  about any  decision  of the taxing officer whether it  relates to appoint  a law  taken with  regard  to taxation or to a grievance  about  the taxation  of any item in the bill  of costs  is ventilated by way of a reference  to the judge  in accordance with paragraph  11 of the Advocates  Remuneration Order”……..

The appeal that they have  purported  to file from the decision of taxing  officer  by way of  an appeal by chamber  summons  as provided under Order XLV111 Rule 5(5)of the Civil procedure Rules is not contemplated  by the Advocates Remuneration  Order.  It is therefore, on the  face of it, incompetent and a nullity  in law.”

There is  no reference as contemplated  under paragraph 11 of the Advocates Remuneration  Order filed before  this court  challenging  the decision of the taxing  officer that  would grant  this court  jurisdiction to hear and  determine the  application seeking to stay the  taxation  of the Advocates Bill of Costs pending  the hearing  of such reference.  In the circumstances, this court cannot  exercise  its discretion in favour of the respondents  who have not  lodged  a competent  reference  to this court  from the  decision of the taxing officer”.

The Court of Appeal in the above case  then  went ahead and dismissed   with costs an  application seeking to stay the taxation, and the  application for review, as lacking  in merit.

On the  basis of the above decisions, by which  I am enjoined, by the doctrine of precedence, and which I find to be good law, I have no option but to dismiss the advocate/applicant’s  application  seeking for review of the  taxing  officer’s decision made on 27th June 2011.

In the event that I was wrong in arriving at the above drastic decision, after espousing the established principles of law of competence of the application before me and which i highly doubt that iam wrong, I would  then proceed  to determine  whether, assuming  the application for review  is the ‘reference’ contemplated under paragraph 11 (2) of  the Advocate Remuneration Order, whether  the taxing officer  had jurisdiction to determine the issue  of retainer  as he did since, as was  submitted by the advocate, the  parties  did not  submit on it.

In my view, the Advocates Remuneration Order  gives the taxing officer  jurisdiction to tax the bill of costs  where there is an established  client/ advocate relationship, and where there  is no dispute  as to retainer( See  paragraphs  2,10,13 of the Advocates Remuneration Order.

In Mugambi & Company Advocates Vs John Okal  Ogwayo & Another (2013) e KLR where  the issue  was that there was no  advocate/client  relationship  between the advocate  and the clients, and so the advocate  was not entitled to  costs from the clients  that could  be taxed,  Waweru J held that the taxing officer  did not  have jurisdiction to hear and  determine the client’s chamber summons  dated 28th February 2011  to strike out  the advocates  bill of costs  because  the issue  being  canvassed  in the application  was whether  or not the advocate was  entitled  to costs  in the first  place from  the clients.  The Learned Judge  further  state, and  I concur thus:

“ The jurisdiction of a taxing  officer is  provided  for in the Advocates Remuneration Order.  That jurisdiction  is to tax  bills  of costs in accordance with the applicable  schedule  of the remuneration  order where there is no dispute  as to retainer, or where costs  have been duly awarded  by an order  of court.  See  paragraphs  2,10,13 of the Remuneration Order, where the very fundamental issue whether or not an advocate  was duly  retained  and thus  entitled  to any costs  arises  before a taxing  officer, that issue ought  first to be determined  by the court.

“ court” is defined  in Section 2  of the  Advocates Act, Cap  16 as  the High  Court.  “court” is thus not the taxing officer or Deputy Registrar of the court.”

In the instant  case, it is  clear that  although the parties  did not  submit  on the issue  of retainer  which the  taxing master  based  his decision, the  parties  had nonetheless elaborately  canvassed the issue in their affidavits which the taxing  master was under a  duty to consider as there  was no order recorded that the parties had agreed to abandon  that line  of argument.  Nonetheless, the taxing officer did consider that issue of retainer so  without the necessary jurisdiction. Under  paragraph  13A of the  Advocates  Remuneration Order, the  taxing officer, for the  purposes of any  proceedings before him, relating  to taxation, has  power to determine  any matter in dispute before him,” only in relation to the  powers of the  taxing officer  on the items  in the bill  of costs s and which cannot  be  interpreted  to mean any issue  that  challenges  the taxing officer’s jurisdiction to tax the bill of costs.

I am in total  agreement  that the issue  of retainer  challenges  the taxing  officers jurisdiction to tax the bill as he  could only tax the bill after  a determination  of whether  client/advocate  being in existence  and which  issue  could  only be determined  by the  ‘court.’

The relevant  Rule `13A provides:

“ For the purposes  of any  proceeding before him, the taxing officer shall have  power  and authority  to summon  and examine  witnesses, administer  oaths, to direct  the productions of books, papers  and documents  and to direct  and adopt all such other proceedings  as may  be necessary  for the  determination  of any  matter in dispute before him.”

In the case of Abincha & company Advocates  vs Trident Insurance  Company Ltd (2013) e KLR Waweru J where  the issue  was whether  the taxing officer  had jurisdiction to determine  the question  whether  the advocate’s bill of  costs  was  statute  barred, the court  held that that was an issue  that could only be determined by a Judge  and that it  was the kind of issue  that the  taxing officer, with  the consent  of both parties, should have referred  to  the opinion  of the High Court.  The Learned  Judge further held:

“ Only  after determination of that fundamental  issue by the High court, that is whether  or not there  were any costs due to the advocate  that could  be taxed, would the  bill of costs be referred  back to the taxing officer  for taxation.  It is found that  there were costs that were due to the  advocate.  I therefore hold that even the taxing officer  of the court did not  have jurisdiction to hear and determine  the main prayers of the Notice of  Motion dated 20th February 2012.

In the instant case, I  reiterate  that  the issue  of retainer was raised  by the defendant  in their grounds of  opposition  and replying  affidavit  of Waithaka  Waihenya contending  that  the advocate  was an employee of  the client  and earned a salary as  per his terms of  employment  contract hence  he could not  have acted as an independent  advocate  in matters  where  the  corporation  was sued  or suing.

Further, Mr Waihenya  challenged  the memo that the corporation secretary  is alleged  to have issued to the advocate  employee giving him the authority to  represent the corporation and charge  legal fees under the Advocates Remuneration Order.  That authority and authenticity  thereof  was seriously challenged  by  affidavit evidence.  Therefore, if the  parties  later on agreed  to abandon  that issue, the most prudent way  would have been to record a consent  for the court’s adoption to the effect  that the  issue of  retainer  had been  abandoned, and  not to merely adopt a silent  mode by not  submitting   on it, and expecting  that the taxing officer  would not  allude to  it in his decision.  In my view, that assumption was misplaced and misconceived .  A court of law  must  consider all the issues  raised unless  the said issues  have been abandoned or compromised by consent of both parties,or by way  of a withdrawal of the issue and  an order  of the court acknowledging  the abandonment or withdrawal  must be recorded  and or endorsed  by the court, or taxing officer in this  case.

In the absence of such  endorsement  or consent  endorsed by the court, the taxing  master could not have  been expected  to know  the intentions  of the parties, as  submissions are  only intended  to clarify issues  of law  and fact, not to serve  as evidence  by the parties.

I therefore  find that  in as much as the taxing master  did rely on the  issue of  retainer which was not  canvassed  in the submissions, the said  issue  was never  abandoned by the parties.

Having  found  that the taxing master had no jurisdiction  to determine  the  issue  of retainer, the next  question is  what orders  can this court make?

In  my view, this court  is entitled  to determine  the issue of  retainer  as it is only by so determining  that  it can establish  whether  there was client/advocate  relationship between H. Oira  advocate  and  Kenya Broadcasting  Corporation and therefore  whether  the bill  of costs  as filed by the advocate  should or should not be taxed. This assessment of the issue of retainer is however, secondary to the main issue which I have already determined that the application herein for review of the taxing officer’s decision is in any event, incompetent and is therefore struck out.

Section 2  of the Advocates Act defines  a “client” to include:

“ Any person who, as a principal or on behalf of another, or as trustee or  personal representative, or on any other  capacity  has power express  or implied  to retain  or employ and retains  or is  about to retain or employ  an advocate  and any person  who is or  may be liable  to pay to an advocate  any costs.”

In Blacks Law Dictionary 6th Edition 1990 the word retainer has been explained as follows:-

“ In the practice of law, when a client  hires an attorney to represent  him, the  client  is said to have retained the attorney.  The act  of employment is called the retainer.  The retainer  agreement between the client and attorney sets  forth  the nature of  services  to be performed.  Costs, expenses and related matters.”

Further, in Strounds Judicial Dictionary of Words  and Phrases 1986, VOL 4 at page 2283, it posited  that the retainer  is:

“ to keep  in pay,” “ to hire”

In Words and Phrases Legally Defined, 2ND edition, VOL 4 by JB Saunders, it is explained that:

“The act of authorizing or employing a solicitor to act on behalf of a client constitutes the solicitor’s retainer by that client.  Consequently the giving of a retainer is equivalent to the making of a contract for the solicitor’s employment.”

In the instant, case the applicant advocate averred that he was instructed to represent the respondent client in the two matters subject   of the dispute in HC Misc. 35& 36/2011.  The respondent on the other hand concedes that the instructions were indeed given to the advocate, but that such advocate   was under an employment contract with the respondent and that he earned his dues for providing the legal services.  The employment  contract  was annexed as WW1  to the replying  affidavit of Waihenya  Waithaka  sworn on 4th May 2011. It is dated 16th September  1993.  The said services of the advocate Mr Hezekiel Oira were terminated on 6th September 2010.

It is worth  noting that  for the period  the advocate  served  as the legal  officer  for the respondent  Corporation until his services were terminated formally, he never  demanded  for the legal fees for the  services rendered, as none was annexed  of his bills of costs.

It was only after his services were terminated that he filed his 2 bills of costs dated 14th February 2011 and filed on the same day, claiming for kshs 2,348,550. 00 in HCC Misc. 35/2011 and 387,385. 00 in HCC Misc. 36/2011 respectively.

The  two bills of costs, carefully examined claim that  the respective services  were rendered  between 15th April 20004 to 12th July 2005  in HC Misc 35/2011 and 15th April 2004  to 28th November  2005  in HC Misc 36/2011 respectively.  The curious  question that this court  asks itself is, did the  advocate have  to wait for nearly 11 years  from the  time  instructions  were given to him, to seek  the intervention  of the court  to have  his bill of costs settled?  Another  ancillary question  is was the advocate  ever paid  any  part of his legal fees for the  services  rendered  to the client  from 2004  since  there is no acknowledgement  of part payment?

This court appreciates that the advocate was in permanent employment of the respondent/client’s corporation which is a public statutory body.  The court also appreciates  that the record  shows that in the two matters subject  of this dispute, the advocate  in the two  cases subject  of the two bills of  costs Nairobi HCC 290/2004  and HCC 305/2004  entered  appearances  on behalf of the  client, filed  defences  and at all  material times  used  both the physical  and postal address of  Hezekiel  Oira Advocate  for the 1st defendant/respondent client  herein.  Thus broadcasting House, Harry Thuku Road, P.O. BOX 30456-00100 Nairobi, the same address on his letter of appointment and termination except when he filed the bills of costs herein for taxation wherein he used his advocate’s contacts.

in the  absence of  an admission  by the client  that instructions  were given to the advocate as an independent  contractor  while in the permanent  employment  of the client  corporation /statutory body,In my an advocate in full time employment  of a public body which draws  its expenditure  partly  from the exchequer, even if it  is a self executing  body, cannot be permitted to engage  in private  practice  and draw a separate  salary from his  employer  as that would be inconsistent  with his  terms  and conditions  of employment.

Furthermore, when  the client  objected to the taxation and filed grounds of objection and the replying affidavit of Waithaka Waihenya  alluded to  herein, there were  serious  issues raised  concerning  the internal memo from the then Corporation secretary Mr William  Ikapel to the ‘legal officer” (name not provided) dated 3rd  April, 1998  whose subject  was in-house  handling  of court cases.

The said memo reads:-

“As part of costing, it was resolved by management that you henceforth personally handle court cases for and against the Corporation in your capacity as an advocate.  This will include  filing  of civil cases  initiated  by the corporation and defend  those  filed against  the Corporation. whereas  the Corporation will facilitate all such activities, you will be entitled  to professional fees  in accordance  with the Advocates  Act  and he Remuneration order  there under

William Ikapel

Corporation Secretary

C.C. MD.”

That  memo under Ref. KBC/MC/15/7/A/C dated 3rd April  1998 was  annexed  to the advocate’s affidavit  in reply  to the client/Managing Director’s replying  affidavit  sworn on 4th May 2011.  In paragraph 5 of his affidavit, the advocate contended that the memo was a resolution by the management of the Corporation appointing him to represent the Corporation, in his capacity as an advocate and that he was entitled to full fees under the scale as that was an added responsibility.

In my most considered  view, while I accept  the rationale that  added  responsibilities  should  go with more money, in this case, the said  memo, which was hotly contested by the Managing Director, commences with the words: “ As part of  costing………”

If the purpose of the added responsibility  was to cut  down on costs, then  it defeats logic that  the advocate who was in full time permanent and pensionable employment of a public statutory body and earning his monthly salary, was nonetheless allowed to charge the client  employer  according  to the  Advocates  Act and Remuneration Order!

Advocates are prohibited from charging fees less than what is provided for under the Advocates Remuneration Order.  If they did so, it would amount to undercutting, which is a professional misconduct.  How then would  the Corporation  cut  on costs  by restricting  the employment  of advocates  from ‘outside” who would  be expected to charge full fees  in accordance with the Advocates  Act  and Remuneration  Order, yet  instructing  its own in house salaried permanent employees advocate  to represent  it in his capacity as an  ‘advocate’ ( as  if he was a qua advocate’) and still ask  him to charge  full fees under the advocates  Act and Remuneration Order there under?

If the client  intended to cut down  on costs, then in the circumstances, it would enhance the employees’ salary and allowances  to cater for  the extra responsibilities, but  not to ask him to charge the Corporation under  the Advocates Act and Remuneration Order, while still  retaining  him on the payroll under  his contract  of employment.

In my humble view, if the advocate felt that he was inadequately being compensated as the work was overwhelmingly more, he should have asked for a salary increment.  In  addition, it is my humble  view that  after his  services  were terminated in 2010, if  there  was any unpaid salaries  or allowances  he was entitled  to claim for the same  before the  Industrial Court (now  the Employment and Labour Relations Court) and  not  file  a bill  of costs as between advocate  and  client  for taxation.

For  the advocate  employee to wait  until  his services  with the  State Corporation as a  full time employee  are terminated  in 2010 before he could file  his bill of costs  for taxation of work done on instructions given in  1998, and in the  absence  of any evidence  that from 1998  when  the alleged internal memo was issued, he had ever rendered  any bill to his client  for settlement or that the client  had ever  made  any part payment for the extra  services  rendered  by the advocate  employee as an independent  contractor, is to attempt  not just to steal a match  on the respondent/Corporation, but to  attempt to defraud  the Corporation  by some conspiracy.

This   court cannot and is not, in view  of the above  discoveries inclined to  believe  that the internal memo  dated 3rd  April 1998 was genuine or that  it was sanctioned by the  Kenya Broadcasting Corporation  Management and if it was, then it  was a fraud.

This court frowns on any attempt to defraud public institutions and to my mind, this was such one attempt of conspiracy to defraud the Kenya Broadcasting Corporation, a public statutory body. This court, regrettably, would not make orders that are contrary to public policy.

In as much as  the client  did employ  the advocate to render legal services  to the Corporation, in my view, the relationship  that existed  would not  entitle the  advocate to charge  the ‘client’ employer legal fees as an independent  contractor  while he  was drawing monthly salary which fact is not denied , and if  it were not  so, this court does not  believe  that the advocate  could have  worked  for free from 1998-2010  and was only compelled  to seek taxation of his bill of costs  after concerted efforts to recover  it failed. There is no evidence of demand for payment of the legal fees for the services rendered before filing of the said bills in court for taxation.

Further, the Corporation’s Managing Director  Mr Waithaka  Waihenya  did on 4th July  2011 swear an affidavit  in response  to the advocates affidavit in reply  wherein he vehemently  denied that  there was any such memo in existence  at the Corporation  or that it was ever  created  in their records since  it had no folio  number as was a practice  in filing of  documents  at the Corporation and that it  was nothing  but a  forgery to mislead  the court in assisting the advocate enrich himself  unjustifiably at the expense   of the  Corporation.  Mr Waihenya  was categorical that there was no management  resolution authorizing  the writing of that  controversial  memo by Mr Ikapel and that  if the  court allows  it then the alleged author  thereof  Mr William Ikapel  was to be  summoned  to attend court  and  be cross examined on the same.  Following  that further affidavit by Mr Waithaka  Waihenya  filed on  6th July 2011, the matter  dragged  on for some time until the ruling of 27th June 2012.

In my humble view, with that  kind of serious  opposition  to the issue of  retainer, it would have been  expected that it there  was any  concession by the respondent  corporation, then a consent between the parties advocates, with the  authority of the client, would have  been filed  and adopted by the  court before  the bills could be  taxed by the taxing officer.  Instead, what I decipher  from the  files herein  is a conspiracy of  silence to  simply not to submit on the issue of  retainer  by either  party’s  advocate and let the court  also be silent  about it.

Unfortunately for both parties, Mr Ndungu (taxing officer) as he then  was  had meticulously  perused  the files  and the  pleadings  and as he  was not part of the conspiracy, notwithstanding  the absence of jurisdiction to determine  that issue as  raised, nonetheless addressed it, thereby prompting  this application subject of  this ruling.

Without sanctioning or  clothing the taxing master with jurisdiction  to determine that  issue  of retainer, I must  however  commend Mr A Ndungu( as he then was ) for  raising  the issue which  he should nonetheless  have referred  to the Judge  to determine, instead of striking out  the bills of costs  on account that   there  was no retainer.

Another  aspect of the advocate’s conduct  that invites this court to find  that the issue of retainer is farfetched  and a conspiracy  to defraud the Kenya Broadcasting Corporation is that even after  filing this application for review, he did not attempt  to counter the affidavit  of Mr Waihenya  and instead  capitalized  on the fact that  he had agreed with the respondents not to raise the issue of  retainer that is why in the respondent’s  advocates  submissions  they never raised  it and  that, that is the reason why  he did not respond to it.

In addition and with  utmost  respect  to Learned counsel, Mr Oira,it has never  been the case that a party would  seek a review  of the court’s own orders  under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rule (assuming they are applicable ) on account  that the court that  made  the order had no jurisdiction  to entertain or determine the matter.  That ground for review  would  be  completely outside  the jurisdiction  of the court  as the court that  has no jurisdiction cannot be asked to  review  its own order made  without jurisdiction .  The taxing officer  exercises  special  jurisdiction  of taxing bills of costs  filed in the High Court  and where  there is no jurisdiction, then that is  a fundamental point of law that  cannot be cured  by way of review  under Section 80 or  Order  45 of the Civil Procedure Act and  Civil Procedure Rule respectively.  That is the very  reason why, as stated  elsewhere in this ruling, the Advocates Act and Remuneration Order establishes  a special procedure  by way of reference  to the Judge to make  a determination.

In this case, indeed, the burden of proving that there was  retainer  between  the advocate  ad client  lay on the advocate, who regrettably did not  discharge that burden to the standard  required on a balance of probabilities.

By approaching  this court with an application for  review , it would  have been upon the  advocate to demonstrate  that notwithstanding  the decision of the taxing officer  which was made without jurisdiction, there was retainer by procuring  affidavits  of Mr William Ikapel the then Corporation Secretary who is alleged  to have communicated   the resolution  by management  to an unnamed  legal officer vide  memo of 3rd  April 1998 authorizing  the conduct  of all cases by the in house  advocate and authorizing  him to charge  the legal fees  in accordance  with Advocates Act  and Remuneration Order thereof. The only inference this court can make  of such is that had Mr Ikapel  been availed  to court to clarify what he had  allegedly  done vide  the annexed memo, his response would have been adverse to the  advocate’s  case.

It is  trite law  that the who  alleges must prove (see Section  107 of Evidence  Act Cap 80 Laws of Kenya  and in this case, it  was upon the advocate  to prove the existence  of that  relationship and entitlement  to  his full legal fees under the  Advocates Remuneration Order.

Therefore, the provisions of Section 3(4) of the Evidence Act Cap 80 Laws of Kenya  are applicable, that “ A fact is not proved when it is neither proved  nor disproved” comes into play.

For  the above reasons, I find that  the two bills  of costs  in  HCC Miscellaneous  Application 53 & 36/2011  are misconceived and an abuse of  the process of court and filed with the sole intention of and conspiracy to defraud  a public body .

I would conclude  that the main issue in this dispute is not whether  or not there  was retainer  but  whether  the respondent/client  was liable to pay  to the advocate any other fees  under the Advocates  Remuneration  Order besides  what he received  under  his terms  and conditions of permanent employment.  Public officers are paid  a non practicing  allowance  to  cover what they would  have earned  had they  been in active  practice, which  allowance, if  the advocate  was not paid, nothing prevented  him from  claiming.

However, in this case, not even a pay slip  was exhibited  to show the  amount  the advocate earned  as an in house lawyer  and at the time of  his departure through his  termination on 6th September 2010  as Corporation Secretary.  It would be deceitful  for a Corporation Secretary or legal officer  of a public  body  to receive  a salary  and to simultaneously  bill his employer  as an  independent  contractor.

The dispute  herein brings  to the fore a practice  in some State Corporations that must be  checked, now  and not later, and  which is  likely to be contributing  to the  demise of  most State  Corporations  funded  by  tax payers.

I reiterate that the situation would probably be different if the respondent  client  was a private entity, entering  into a contract with an advocate who was engaged  in private  practice  to handle  both in house and external legal services  to the client  at not  only an agreed  monthly remuneration, but also for providing  independent  legal  services, as was in the case of Cannon Assurance  Ltd vs Anthony Kanai & Another  (2014) e KLR Petition No.433/2013.

In the instant case, there was no disclosure or proof that  the advocate  took out  his annual practicing  certificate  using his  own earnings or whether  it is the employer that paid  for him.  Secondly, there was no disclosure  or proof whether the advocate took out a mandatory professional  indemnity cover  or whether  the advocate recovered  any costs  and the respondent  sought from him reimbursement  of all other expenses  from the advocates  salary as provided  for in Rule 4(1) of the Advocates  Practice  Rules where, a non advocate who  has employed  an advocate  is permitted  to receive  costs from a third party  provided that  the same are set  off  against  the salary payable  to the  advocate  or reasonable  office expenses  incurred  by the employer  in connection with the advocate.

In my humble view, the relationship  between the advocate   and the respondent  herein could  only be governed  by the employment  laws which  this court  cannot delve  into  for want of  jurisdiction, as ousted by Article 165(5) (b) of the Constitution.  However, as the bills filed related to matters that were  filed or defended  in the High Court  and which  the High court had  unlimited  jurisdiction over, this court  is  well placed  to delve  into whether  the  advocate  had any cause of  action against his employer in his capacity as an “advocate independent contractor.”  The advocate  in this case  having  served  as a public officer  in a public state corporation, his letter of appointment  was clear  as to the terms  and  conditions  of service including  salary  scales and yearly  increments.  He  joined as a legal officer  and rose  to the position of corporation secretary  upon which his services were terminated.

In my view, the advocate herein is estopped from attempting to recover  legal fees for services rendered  to his employer ( as if  he was an independent contractor) after termination of  his employment  with the respondent.  To allow such  bills of costs  to be taxed  on merit  would be  assisting  a public officer  to brazenly  breach the law and more  specifically, the provisions  of Section 11 of the Public Officer Ethics Act, 2003  which was applicable  at the time  the advocate  was engaged in employment  of the respondent, which provisions  outlaw  unfair  enrichment by public officers.

The upshot  of all the above exposition is that  I find no merit in the  advocate/applicant’s application for  review  and proceed  to dismiss the same as filed.

I also find that the taxing officer had no jurisdiction to determine the issue of retainer.  Nonetheless, I further  find that  the advocates  bills of costs as filed in HC Miscellaneous  Application No 36/2013  and 35/2013  do not  disclose  any cause of action and I dismiss them.

Costs are in the discretion of the court. In this  case, the court hesitates to  award  the respondent any costs  for reasons that the court discerns  some conspiracy  of silence on the issue of retainer  between the respective  parties’ advocate, which issue was  strongly advanced  by the respondent  in its affidavits opposing  the taxation  of bills of costs, and without any abandonment  of that hard stance  explicit  in the sworn affidavits, the respondent’s  advocate did not raise it in his submission  before the taxing officer, knowing  very well that there was no  consent  filed  abandoning  the issue, that  would  go to the jurisdiction of the matter divesting  the taxing officer  of any power  to tax  the bills where the  issue of retainer  was raised.

Further, in the submissions  before this  court, the respondent  did not, whether  by design  or otherwise, respond to  that same  issue  of retainer  which is the subject  of the application for review and therefore, this ruling.

In the premise, I order that each party shall bear their own costs of this application and of the bills of costs filed by the advocate for taxation.

I further direct that this ruling be typed and served on the Inspectorate of State Corporations and the Attorney General.

Orders accordingly.

Dated, signed and delivered at Nairobi this 26th May 2015

R.E. ABURILI

JUDGE

26/5/2015

26. 5.2015

Coram R.E. Aburili J

C.A. Kavata

Mr Mwangi for the advocate/applicant

No appearance for respondent.

Court-   Ruling delivered as scheduled in open court.

R.E. ABURILI

JUDGE

26. 5.2015

Mr Mwangi-   I seek leave to appeal and a copy of the typed ruling.

R.E. ABURILI

JUDGE

COURT- The applicant for make a formal application for leave to appeal and give reasons as leave cannot be granted without reasons advanced.  The applicant/advocate to be provided with a typed copy of the Ruling upon payment of the requisite fees.

R.E. ABURILI

JUDGE

26. 5.2015