M/S L.R Kipsang & Co. Advocates v Kemei [2023] KEHC 26672 (KLR)

M/S L.R Kipsang & Co. Advocates v Kemei (Miscellaneous Civil Application 29 of 2018) [2023] KEHC 26672 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26672 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Civil Application 29 of 2018

JK Sergon, J

December 13, 2023

Between

M/S L.R Kipsang & Co. Advocates

Plaintiff

and

Francis Kemei

Defendant

Ruling

1. The application coming up for this court's determination is a chamber summons dated 20th March, 2019 seeking the following orders;(i)Spent(ii)Spent(iii)That the honourable court be pleased to set aside the decree dated 30th October, 2018 herein extend time and grant leave to the applicant to file an objection to the bill of costs dated 26th June, 2018 and taxed ex parte on 26th September, 2018. (iii)That via reference the honourable court be pleased to call up proceedings and judgment in Kericho HCCA No. 31 of 2015 for the purposes of taxation or direct taxation of the advocate/client bill of costs herein to the taxing master or the Deputy Registrar.(iv)Costs of this application be provided for.

2. The application is supported by grounds on the face of it and the supporting affidavit sworn by Francis C. Kemei the Applicant herein.

3. The Applicant avers that he had a court matter namely Kericho HCCA No. 31 of 2015 with one Biegon Kipkoech who had sued him, the matter was concluded and it was decreed that he should pay the decree holder a sum of Kshs. 1,800,000/=. The advocate on record in the matter was M/S Gordon Ogola, Kipkoech & Co. Advocates. The Applicant avers that warrants of arrest were issued. He avers that he wanted to pay up the decretal amount through a forwarding letter, however, it was in December and most advocates offices were closed, including that of his advocate on record.

4. The Applicant avers that he went to M/S L.R. Kipsang & Co. Advocates the respondent herein and requested him to do a letter forwarding the cheque to the decree holder on his behalf since his advocates offices were closed on condition that he would also assist to obtain the original title L.R Kericho/Kabianga/2613.

5. The Applicant avers that the respondent obliged wrote a letter, forwarded five cheques and went beyond scope of his instructions and filed a notice of change of advocates in the matter and did not deliver to him the original title deed as instructed.

6. The Applicant contends that the matter was concluded by his advocate on record and there was no work left on the file but to simply forward the payment cheques. The applicant further contends that he paid the respondent a sum of Kshs. 130,000/= in five installments and was not given receipts.

7. The applicant avers that the respondent proceeded to file an advocate/client bill of costs dated 26th June, 2018 for a sum of Kshs. 630,000/= and further that the respondent purportedly served him with the said bill of cost and the relevant notice of taxation. The applicant contested service and avers that the applicant proceeded to tax the bill of costs ex-parte pursuant to which a ruling dated 26th September, 2018 was delivered.

8. The applicant avers that the respondents bill of costs manifestly excessive and exorbitant.

9. The applicant avers that the respondent could not have taxed instruction fee in HCCA No. 31 of 2015 as the instruction fees was due his advocate on record in the matter and therefore found it untenable that he would pay instruction fees twice.

10. The applicant avers that the respondent proceeded to obtain a certificate of costs and instructed auctioneers to levy distress against him. The applicant avers that the execution was irregular and/or unlawful as there was no proclamation.

11. The applicant avers that the bill was taxed on 26th September, 2018 and the fourteen days to file an objection lapsed and via the instant reference was seeking an enlargement of time to enable him object to the bill and have the bill taxed inter partes to enable him settle any valid dues to the respondent.

12. The respondent filed a replying affidavit sworn by Langat Richard Kipsang who denied all the averments made by the applicant in his supporting affidavit and maintained that the instant application is a belated attempt to delay realization of his costs and further that the application offends rules of procedure and is an affront to expeditious determination of the matter at hand, moreso, when the auctioneers have been incurring storage costs of the attached motor vehicle for over one year.

13. The Applicant filed submissions in which he set out the chronology of events culminating in the disputed advocate/client bill of costs. He conceded to having instructed the respondent to forward bankers cheques to the firm of M/S Obondo Koko Advocates towards the payment of the decree in Kericho HCCA No. 31 of 2015, however, he contends that the respondent went beyond the scope of his instructions and subsequently filed an advocate/client bill against him, taxed the bill ex parte without service and notice and proceeded to attach a motor vehicle that was in the possession and use of the applicant.

14. The Applicant concedes that the cheques were forwarded, however, the respondent did not retrieve the original title deed as per the terms of their agreement. The Applicant contended that he paid the respondent herein for the services rendered, he paid a sum of Kshs. 130,000/= in several installments, however, the respondent did not furnish him with receipts as proof of payment.

15. The Applicant contends that the bill of costs was manifestly excessive and the applicant was therefore seeking to have the application allowed to allow him to object to the bill of costs, subject the same to proper taxation on merit and eventually settle the dues to the respondent.

16. The Applicant contested several items on the advocate clients bill of costs to wit Item No. 1 on instructions, he contended he did not instruct the respondent to act in Kericho HCCA No. 31 of 2015, the matter was already concluded and there were advocates on record in the matter, the respondent was merely instructed to forward cheques in settlement of a decree. The Applicant contested Item No. 2 traveling to and attending court at Kericho to peruse the court file. The Applicant contended that the respondent was awarded a sum of Kshs. 50,000/= yet did not indicate how many times he traveled, the date traveled and purpose of the trip. The Applicant contested Item No. 4 spending enormous time with client on issues relating to warrant of arrest and issues related to payment. The Applicant was awarded a sum of Kshs. 80,000/= yet he forwarded cheques in fulfillment of the decree in Kericho HCCA No. 31 of 2015 which resolved the issue of warrants that had been issued in execution of the decree.

17. The Applicant was therefore seeking to have the reference allowed and enlargement of time to object to the bill of costs and allow taxation of the bill inter partes. The applicant cited the case of Rogan-Kamper v Lord Grosvenor (No.3) Court of Appeal, Nairobi to submit that this court has the requisite jurisdiction to alter quantum on reference.

18. The Respondent did not file any submissions.

19. I have carefully studied the pleadings and the submissions by the applicant and find that the sole issue for determination by this court is whether instant reference has merit. The answer is in the affirmative, I find that the applicant raises weighty points with regards to the Advocate/Client’s Bill of Costs dated 26th June, 2018 and taxed ex parte on 26th September, 2028 to wit Item No. 1 on instruction fees in which the applicant submitted that Kericho HCCA NO. 31 of 2015 was determined and a decree issued against him and there was a firm of advocates on record, the respondent was merely instructed to forward bank cheques to pay up the decree, therefore the respondent was not entitled to the instruction fees, in which event the applicant contended that he paid the respondent over several installments for the services rendered. Item No. 2 on disbursement namely travel costs to court to peruse court file, I find that the same is not particularized to warrant an award of Kshs. 50,000/= . It is clear that there is a dispute between the parties as to the amounts owing for services rendered and given the fact that the applicant did not have the opportunity to object to the Advocate/Client’s Bill of Costs dated 26th June, 2018 which was taxed ex parte, it is therefore in the interest of justice to have this matter remitted to the taxing master for re-taxation.

20. Consequently, the chamber summons dated 20th March, 2019 is hereby allowed giving rise to issuance of the following consequential orders:(i)The decision of the Taxing Officer delivered on 26th September, 2018 as far as the same relates to the taxation of the Advocate/Client’s Bill of Costs dated 26th June, 2018 is hereby set aside.(ii)The Advocate/Client’s Bill of Costs dated 26th June, 2018 to be remitted back to the taxing Officer for re-taxation.(iii)Each party to bear its own costs

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. .........................J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohNo Appearance for the Parties