Nyabena Alfed t/a Nyabena Nyakundi & Company Advocates v Tourism Promotion Limited t/a Serena hotel [2018] KEHC 7669 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  35 OF 2014

IN THE MATER OF THE ADVOCATE ACT CAP 16 OF THE LAWS OF KENYA

AND

NYABENA ALFED T/A NYABENA

NYAKUNDI & COMPANY.............................ADVOCATE/APPLICANT

VERSUS

TOURISM PROMOTION LIMITED T/A

SERENA HOTEL…………………………....RESPONDENT/CLIENT

IN

HIGH COURT CONSTITUTIONAL PETITION NO.  384 OF 2009

BETWEEN

TOURISM PROMOTION SERVICES LIMITED T/A

SERENA HOTEL..............................................................APPLICANT

-VERSUS-

THE INDUSTRIAL COURT........................................RESPONDENT

KENYA HOTELS AND ALLIED

WORKERS UNION...................................1ST INTERESTED PARTY

KENYA HOTELKEEPERS AND

CATERERS ASSOCIATION...................2ND INTERESTED PARTY

KENYA UNION OF DOMESTIC HOTELS

EDUCATIONALINSTITUTIONS HOSPITALS

AND ALLIEDWORKERS.......................3RD INTERESTED PARTY

JUDGMENT

1.  By a notice of motion dated 18th January 2018, the applicant/advocate  Nyabena Alfred  T/A Nyabena Nyakundi  & company Advocates seeks from this court as against the respondent tourism promotion  Services  Ltd  T/A Serena  Hotel the following  orders:

a. That the certificate of taxation  dated  5th  January  2016  be and is hereby adopted as a decree of  the court  for purposes  of  execution.

b. That the respondent be ordered to comply with the certificate of taxation/decree dated 5th January 2016 within 7 days from the date of the order.

c. That the Honourable Court do issue such orders and give such directions as it may consider appropriate to meet the ends of justice.

d. The respondent be condemned to pay the costs of this application.

2. The application is predicated on grounds and supported by the affidavit of Alfred Nyabena sworn on 10th January 2018.

3. According to the applicant, taxation of advocate/client bill of costs  was done on 7th December 2015 by the Deputy Registrar R. Aganyo as presented  in the sum  of kshs  440, 226 as shown  by annexed  certificate  of taxation dated 5th January  2016 hence the certificate of taxation should be adopted as decree of the court  to enable  the  certificate of taxation should be adopted  as decree of the court to enable the certificate of taxation enforced  as the respondent  has  withheld  the  payment of the costs  for  several  years  as the certificate of taxation  has not been varied  or set  aside by the court.

4. The applicant’s Counsel Mr Onenga  argued orally, reiterating the contents  of the application and urging  that the preliminary objection  filed is  misconceived  as no  suit ought to be filed  to recover taxed costs.  He relied on Section 3A of the Civil Procedure Act and inherent jurisdiction of the court.

5. The respondent filed notice of preliminary objection to the motion.  It is  dated  26th February  2018  to the effect  that the application  offends  the provisions  of Section  48  as read with  Section  51 of the Advocated Act Cap 16 Laws  of Kenya and that this court  lacks jurisdiction  to grant  the orders  sought in the application.

6.  In his arguments, Mr Angweny, counsel for the respondent/client submitted that there is no prayer for judgment   despite the court advising the applicant to amend the application which they ignored.

7. Further, that the procedure for this kind of application is Sections 48 and 51 of the Advocates Act hence Section 3A of the Civil Procedure Act cannot override the Advocate Act.  Counsel relied on the case of L.N. Ngolya & Company Advocates vs Jackson Muithi Kilango [2008] eKLR.

8. In a rejoinder  Mr Onenga  submitted that the application  seeks that  certificate  of  taxation  be adopted as decree of the court hence  the  preliminary objection  was misplaced.

Determination

9.  I have carefully considered the application by the applicant.  On  26th February 2018  when the  matter came  up  for  mention I directed  the applicant’s  counsel  to amend the application and  serve in  7 days  and the same  to be head on  8th March  2018.  No such amendment was done.  The court did not direct on what amendments were necessary.  However, it  was expected  that the applicant  being  an advocate, would  reexamine  the  motion in the line  with the law and establish  that which  was necessary  to amend  the motion.

10. Often times, parties file very vague pleadings for the court to deduce what orders are appropriate in the circumstances. This is the case even where parties themselves are advocates who are officers of this court. However, the court has inherent power to order for amendment of pleadings for clarity purposes.  In this case the court had observed that the application was brought under the provisions of the Civil Procedure Rules and that is was not clear on what the applicant was seeking.

11. The applicant’s  counsel never  deciphered anything from the court’s observation  hence I shall proceed  to determine  the merits  of the application as is it noting that citing wrong provisions of the law is  not a  fatal  defect  that cannot  be cured  as the court is deemed  to  know the law applicable in each matter.

12. However, parties are expected to know their cases and the law applicable and not to bring vague pleadings and where such parties are advocates they are deemed to know the law even better.  It is therefore surprising that an advocate in such an application has no idea what law is applicable in such a simple matter.

13. Onto the motion and  prayers  sought, the respondent  has raised  what is considered to be a preliminary objection, that the applicant  should  have filed  suit for  recovery  of the  taxed  costs and  not seek for adoption of  certificate  of taxation and  secondly, that the court lacks jurisdiction to grant the orders sought.  However, the respondent did not make any arguments on what jurisdiction the court lacked.  Mr Angweny advocate for the respondent/ client cited the case of L.N. Ngolya and Company Advocates vs Jackson Mithi Kilango (supra) where Lenaola J was faced with the question of whether, upon taxation of costs, an advocate can recover those costs by direct execution or filing suit, obtaining judgment and executing for the same in case of default.  However, the  respondent did not  highlight  what he  considered salient features of that decision for this court’s adoption, and counsel only submitted  that the applicant  should have filed suit and that there is no application for judgment. This latter aspect is found in paragraph 6 of the judgment in the LN. Ngolya  & Company Advocates (supra) case where the court  held that  once costs  are taxed, then Section 48  and  Section 49 of the Act became operational  and the advocate  then should  have followed the steps for instituting a suit  for recovery of costs  and thereafter  proceed  to obtain a judgment  and decree  capable  of being  executed.

14. The above LN. Ngolya  & Company Advocates decision is a 2008 decision.  There are plethora of  decisions, on the question of whether advocates costs once  taxed should be  subject of filing  of a fresh suit for  recovery  or whether an  advocate can simply seek for judgment ( or adoption of the certificate  of costs  as decree)  of the court  as was done  in this case by the applicant.

15. It is should  be noted that the  L.N.Ngolya  & Company Advocates (supra)  case only dealt  specifically with Section  48  and  49  of  the Advocates Act  which apply in a matter before taxation of costs, not after taxation and a certificate of  costs has been issued.  Where costs have been taxed, the applicable provision is Section 51(2) of the Advocates Act   which stipulate:

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

16. From the above provision, it is clear, and it a rule of practice for advocates to file applications by way of notice of motion moving the court to enter judgment   after taxation of their bills of costs and issuance of certificate of taxation.  This procedure  ensures  expedition  since the certificate  of costs once  issued is final  as to the amount  of the costs  covered and what then  remains  is for the court to pronounce itself, on an application for  judgment, where  there is no  dispute  as to retainer,  and order that  judgment be  entered  for the sum of as per the  certificate of  costs.

17. That procedure, in my view, is intended to cushion  advocates from waiting for  long periods  of time and or undergoing the rigours of  a full trial before payment of their  costs which are already  determined through taxation process by the taxing officer  in exercise  of  special  jurisdiction  of the  High Court.

18. Accordingly, it is my humble  view that there is no  obligation on the part  of the advocate  who has  had his  costs taxed  by a taxing officer,  to file a  fresh  suit for  recovery  of the taxed  costs  and where a certificate  of taxation issued.  The advocate  is therefore  under no obligation  to comply with Sections  48 and  49  of the Advocates  Act once  he/she  has a certificate of taxation  which is final as far  as the amount  of costs covered  thereby is concerned.  Section  48 of the Advocates Act provides.

1)  “Subject to this Act, no suit shall be brought for the recovery of  any  costs due  to an advocate  or his  firm  until  after the expiry of one month after a bill for such costs, which may be in summarized  form, signed  by the advocate  or a partner in  his firm, has been delivered or sent by registered post to the client, unless there is reasonable cause to be  verified  by affidavit  filed with the plaint, for believing that the party chargeable  therewith  is about  to quit  Kenya a or abscond  from the local limits  of the court’s jurisdiction, in which event action may be commenced  before expiry of the period d of one month.

2)  Subject to Subsection (1), a suit may be brought for the recovery of the costs due to an advocate in any court of competent jurisdiction.

3)  Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs has been filed.”

19. In the above  Section  48, there is  no  provision  that a suit  in which  a  request for judgment  for costs  is made must  be  instituted  by way of a plaint, save in  instances  where there is  reasonable  belief  on the part of an Advocate  that a party  who has  not paid costs  is about  to quit  Kenya or abscond  from  the court’s jurisdiction.

20. There is therefore nothing wrong  with a party  seeking for judgment  on the taxed  costs, by way of a notice of motion  on a certificate  of taxation  which has neither been set  aside not challenged  by way of a reference  against the Taxing  Master’s decision. In this case, the court file only reveals that there is a ‘Notice of objection’ which is unsigned as noted by the Deputy Registrar n a yellow sticker on 27th January 2016, purporting to objecting to taxing master’s decision made on 7th December, 2015, but there is no reference filed. Furthermore, an unsigned Notice of objection is no notice at all. In CA  Nairobi  Nos 13 & 19  of  2001 consolidated Vipin Maganlal  Shah Alulkumar  Maganlal  Shah vs Investments  & Mortgage  Bank Ltd & 2  Others[2001]  the Court of Appeal held inter alia:

““……There  is  of  course  the object  the  legislature  had  in mind in  requiring  that  a plaint be  signed  either by  counsel or party  suing.  The object must clearly  be to  make the  party  suing or filing any other pleading take ownership and  responsibility  for the contents of the   plaint  or pleading  or as  was said in the Australian case  of Great  Australian Gold Mining  Company case,  supra, to be:

“ a  voucher  that the case is not a  mere fiction.”

Again, in Kenya Order VII Rule 1(e) now requires that a plaint shall contain……….

“ If  a  plaint is not  signed  either by the   plaintiff  in person or his  recognized  agent or  his advocate,  what is the   use of  requiring  that it contains  an averment by the plaintiff  that there  is no  other suit pending  and  so  on? If the plaint is not  signed  a  required  by order  VI Rule  14, these  other requirements  clearly  become  meaningless.

Whatever may be  the  position in India or even  in England, the position  in Kenya  seems  to be  that a  party who  files unsigned  plaint  runs  a very grave risk of having  that plaint  struck  out  as not  complying  with the law.  We shall go no further  than that  because  as we said  earlier, we must  deal  with the issue of whether  or not   there  was  on record  a copy of the  signed plaint  when  the  summons to  strike out  was lodged  in the  superior  court.”

21. In ELRC case  No. 269/2014  Anthony  Simiyu  Kisiangani  & another  V Nzoia Out Growers  Company Ltd  &  2 Others [2015]  e KLR  citing  Regina  Kavenya  Mutuku & 3 Others  v United  Insurance Company Ltd Nairobi Milimani  HCC  No. 1994/2000 [2002]  1 KLR 250  Ringera  J ( as he then was ) held and I agree though persuasively:

“ An  unsigned  pleading  had no  validity in law  as it is the  signature of  the appropriate  person on the pleading which authenticates  the same  and  an unauthenticated  document  is  not a pleading  of anybody.  It is a nullity.”

22. The above case also  cited the   Court of Appeal  decision  in CA 13  & 19/2001 Vipin  Maganlal Shah  vs  Investment  & Mortgages  Bank  Ltd  & 2  Others [supra] with approval  on the effect  of an unsigned  pleading  and  stated:

“ Where  a pleading  is not  signed  the same would be  struck out  rather  than  being  dismissed……”

23. The  advocate  filed a bill of costs dated  2nd  February  2015  against  the client  and  served  it upon the client  for taxation but the  client  did not  attend the taxation.  The Taxing Master Mrs R. Aganyo taxed the bill on 7th December 2015 at kshs 440,226 after considering submissions from the advocate. The certificate  of taxation  was issued  on 5th January  2016  but  to date no reference  was filed  by the client  challenging   the taxation.

24. On 11th January  2018, two years after the taxation, the advocate filed  a notice of motion seeking that this court  adopts the  certificate  of taxation dated  5th January  2016  as   a decree  of the court  for  purposes of execution . There is no indication that the client is interested in moving the court on a reference against the certificate of taxation.

25. As earlier  stated, what the  advocate should  have done  is to apply for  judgment  to be  entered  on the basis of the certificate   of  taxation as stipulated in Section 51(2)  of the Advocates Act. Instead, he applied for adoption of the  certificate of taxation as decree of the court.  The question   therefore is whether adoption of the certificate of taxation as decree is  synonymous  with judgment  being  entered  in favour  of the advocate in terms  of  the  certificate  of taxation.

26. In my humble  view, albeit the  advocate  vaguely  drew  the  application and which  the  court  attempted  to have it  corrected  by way of an amendment, seeking for adoption  of a certificate  of  taxation  can be taken  to be synonymous with seeking entry  of judgment  on the basis of certificate  of taxation.

27. For the above reasons, I find and hold that this court has jurisdiction to adopt  the certificate of  taxation dated 5th January  2016 and  enter judgment for the advocate  upon which  a decree shall be drawn  for  execution purposes.

28. Accordingly, I find the application by the advocate/applicant merited.  I hereby enter judgment  for the advocate in terms of the certificate  of taxation  dated  5th January  2016  and  direct  that decree  be drawn in terms  of the  taxed costs for  executions  in the usual  manner  with an order  that  each party  shall bear  their own costs of the  notice of motion dated  10th  January  2018.

29. Those are orders of the court.

Dated, signed and delivered in open court at Nairobi this 26th day of March 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Angwenyi advocate for the Respondent/client

N/A for the Applicant/Advocate

CA: Kombo