Otieno, Ragot & Co. Advocates v Kenindia Assurance Company Limited [2015] KEHC 2311 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL CAUSE NO. 210 OF 2013

IN THE MATTER OF AN ADVOCATE – CLIENT BILL OF COSTS

BETWEEN

OTIENO, RAGOT & CO. ADVOCATES …...................... APPLICANT/ADVOCATE

AND

KENINDIA ASSURANCE COMPANY LIMITED …........... RESPONDENT/CLIENT

Arising From

Kericho SRMCC NO. 463 OF 2006

EVERLINE AOKO NDOLO ….................................................................. PLAINTIFF

VERSUS

PAUL OTIENO OMONDI ….................................................................. DEFENDANT

RULING

Before me is the application dated 11th August 2014 which really is a reference on the taxation of the Applicant/Advocate's Bill of Costs.  The disputed items are 12, 13, 14 and the item on interest at 14% per annum.

The application was canvassed by way of written submissions in which it is stated that Notice of Objection to the taxation was given on 3rd July 2014; that the Advocate was entitled to charge interest at 14% per annum from 22nd May 2010 to November 2013 Under Rule 7 of the Advocates Remuneration Order and that the taxing officer therefore acted erroneously in taxing off the interest.

On item 12 it was submitted that the same being an item on correspondences hence disbursements incurred by the Advocate the same ought not to have been taxed off and that moreover the taxing officer erred in not giving reasons for taxing off the item.

On item 14 it was argued that the same was an item on travelling expenses for which the taxing officer had discretion to allow but did not do so much as the sum charged was reasonable.

The application/reference was opposed.  Relying on grounds of opposition filed on 12th November 2014 Counsel for the respondent/client submitted that; firstly that the application is bad in law for being filed out of time without leave.  That indeed no notice of objection was filed and served upon the client within 14 days as provided by the law.  It was pointed out that the decision being challenged was made on 13th May 2014 yet the notice of objection was only filed on 7th July 2014.  Further that no reasons were given by the Taxing Officer on the items in issue and hence this Court cannot review the same.  It is further argued that that notwithstanding the taxing officer exercised his discretion properly in taxing off the items the same being matters that are not provided for under the relevant schedule.

I have considered the rival submissions carefully.  I have also perused the Court record and all other material placed before me.

Objections to decisions on taxation such as the one before me are provided for Under Rule 11 of the Advocates Remuneration Order.  Rule 11(1) requires that any party wishing to object to the decision may within 14 days after the decision give notice in writing to the taxing officer of the items objected to.  Rule 11(2) requires the taxing officer to give his reasons forthwith.  After receipt of these reasons the party has 14 days to apply to the charge  by Chamber Summons.  Rule 11(4) gives the High Court power to enlarge the time fixed in (1) and (2) upon an application made by way of Chamber Summons.  From the record the decision of the taxing officer was made on 13th May 2014.  The record also shows that on 3rd July 2014 the Advocate/Applicant did write to the taxing officer requesting his decision on the items now objected to.  By letter dated 10th July2014 the taxing officer responded by stating that the reasons were in the ruling which they are.  However it was not until 4th September 2014 that the Advocate/Applicant filed this objection.  Notice only did the Advocate/Applicant give notice of objection out of time but he also filed this reference out of time and in both instances he did not seek the leave of this Court to enlarge time.  In my view that is not a technicality that can be wished away under Article 159(2) (d) of the Constitution and this reference is incompetent.

Be that as it may I have also considered the application on its merit, and this bearing in mind that this Court cannot interfere with the discretion of the taxing officer unless it be shown that he took into account an irrelevant matter or that he acted on a wrong principle.

On the whole I found the objection to be without merit.  The taxation in this matter arose from Kericho SRMCC No. 463 of 2006 meaning it was a lower Court matter.  The relevant schedule was therefore Schedule VII which under Part A provides for Party and Party costs.  The Advocate/Client costs are provided for under Part B which gives the taxing officer methods by which to determine the Advocate/Clients costs.

These are:-

a) The fees prescribed in Paragraph A increased by one half; or

b) The fees ordered by the Court increased by one half;

c) The fees agreed by the parties under Paragraph 57 of the order increased by one half as the case may be such increase to include all proper attendances on the client and all necessary correspondences.

Unlike Schedule VI, Schedule VII does not leave the taxing officer much discretion and indeed under Part A there is no provision for correspondences or telephone calls.  These are catered for under the increase by one-half as can be discerned in part B – ''Such increase to include all proper attendances on the client and all necessary correspondences.''

As the Advocates fees are to be computed from the amount found due under Part A my finding is that items 12, 13 and 14 were property taxed off.  It will also be noted that item 14 is a repetition of item 5 which catered for the Advocates attendances to Court and could not be paid twice.  Moreover even for travelling for the process server the schedule requires that the actual amount be paid and as this was not proved it could also not be properly paid.

As for the interest I do agree that under paragraph 7 of the Advocates Remuneration Order an Advocate is entitled to charge an interest at 14% per annum.  A closer reading of that paragraph and the one before it will however disclose that it is only once the costs have either been agreen or taxed and the client is served and does not pay for a month following that service that the interest can be charged.  I am thereforefore satisfied that the item on 14% interest was also properly taxed off.  However the Advocate/Client is entitled to interest at 14% per annum from the date of the ruling of the taxing officer.  Each party shall bear their own costs.

It is so ordered.

Signed, dated and delivered in open Court this ..24th... day of ..September.. 2015

E. N. MAINA

JUDGE

In presence of:-

Mr. Ragot for the Applicant

Miss Aron for the Respondent

CC:  Moses Okumu