Otieno, Ragot & Company Advocates v Chemelil Sugar Co Limited [2023] KEHC 23594 (KLR)

Otieno, Ragot & Company Advocates v Chemelil Sugar Co Limited (Miscellaneous Civil Application 96 of 2019) [2023] KEHC 23594 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23594 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Application 96 of 2019

RE Aburili, J

October 16, 2023

Between

Otieno, Ragot & Company Advocates

Applicant

and

Chemelil Sugar Co Limited

Respondent

(Arising from the professional services rendered by the Applicant for the Respondent in the Original in Kisumu High Court Case No. 84 of 2008)

Ruling

1. On 9th October 2019, Advocate/Client Bill of Costs were taxed between the Applicant herein and the Respondent Chemelil Sugar Company Limited in the sum of Kshs.181,104. 94. Certificate of Costs was issued on 14th November 2019.

2. No Reference was filed by the Respondent as required under Paragraph 11 of the Advocates Remuneration Order, to challenge the certificate of costs or the taxation.

3. On 6th December 2022, vide a Notice of Motion brought under the provisions of Section 51 of the Advocates Act, the advocate prays that the Certificate of Costs made on 9th October 2019 and issued on 4th November 2019 be adopted as judgment of the court and decree do issue.

4. The advocate also prays for interest at 14% p.a from 5th August 2014 until payment in full.

5. The costs as taxed were in respect of legal services rendered by the Applicant in favour of the Client Respondent in Kisumu HCC No. 84 of 2008 through a retainer by way of specific instructions given on 22nd September 2008 as shown by letter dated the same day signed by JJ Maina, legal officer forwarding summons to enter appearance, plaint and verifying affidavit in Jared Abongo K. Odingo vs Chemelil Sugar Company Limited.

6. Later, the case was withdrawn on 3rd July 2014 and the advocate vide letter dated 5th July 2014 notified the client, annexing the proforma invoice for settlement, dated the same day. It is that nonpayment of legal fees as demanded that culminated in the bill of costs filed and finally taxed in this matter on 9th October 2019.

7. The Respondent filed a Replying affidavit sworn by Pauline Akello on 27th February 2023 contending that they indeed instructed the applicant in the aforesaid suit to defend them but that the applicant’s proforma invoice relates to Kisii HCCC No. 84 of 2008 and not Kisumu HCCC No. 84 of 2008. That therefore the advocate did not serve the Respondent with a proforma invoice and that therefore taxation was premature and the interest if any should be from the date of taxation, not the date of service of the wrong proforma. The Respondent denies that it instructed the applicant in the Kisii High Court HCC No. 84 of 2008. It also filed submissions contending the same deposition while Mr. Otieno David submitted relying on his grounds and affidavit in support which is summarized above.

Determination 8. I have considered the application, grounds, affidavit in support and the annextures thereto. I have also considered the Replying affidavit and submissions as filed by the Respondent. The issue for determination is whether the application is merited.

9. It is not in doubt that the court record shows that a bill of costs dated 7th June 2019 was filed on 10th June 2019 and taxed on 9th October 2019 as per the certificate of costs issued on 4th November 2019 at Kshs.181,104. 94. It is also not in dispute that no reference was filed by the Respondent herein.

10. What is in dispute is whether the bill related to instructions given in Kisumu HCC No. 84 of 2008 or Kisii HCC No. 84 of 2008 and therefore whether interest chargeable would be from date of taxation or of service of the proforma invoice.

11. The instructions given on 22nd September 20087 was in respect of Kisumu HCC No. 84 of 2008 not Kisii HCC No. 84 of 2008.

12. However, when the advocate sent the client a proforma invoice on 5th July 2014 through postal service, it quoted the correct reference No. for the client being ORC/JTR/CIV/2692 and gave the description of a correct case number but for a wrong court. That is why the client is correct when it says that it never instructed the advocate in Kisii HCC No. 84 of 2008.

13. I have also examined the proforma invoice and the actual bill of costs as filed and subsequently taxed. It was upon the advocate to send the correct proforma invoice for the correct matter instructed on or resend a corrected version. The amounts in the itemized bill are significantly different and in the absence of a rectification of the incorrect proforma invoice, I find that the advocate did not serve the client with the summary itemized bill or proforma invoice for the settlement of the fees in the matter wherein he was instructed to defend.

14. For that reason, I agree with the Respondent that interest if any, therefore, will be from the date of taxation on 9th October 2019 and not the date of or one month after issuance of the erroneous and uncorrected proforma invoice.

15. As there was clear instructions to defend the suit in Kisumu HCC No. 84 of 2008 and the bill of costs filed in court property described the suit as Kisumu HCC No. 84 of 2008 wherein the advocate had rendered legal professional services; and in the absence of a reference or dispute on retainer on the taxed bill of costs between advocate and client, I hereby enter judgment for the advocate against the client in terms of the certificate of costs dated 9th October 2019 for the sum of Kshs.181,104. 94 plus interest at 14% .

16. However as nothing prevented the advocate from filing the application for entry of judgment from 9th October 2019 to 6th December 2022 which was three (3) years from date of taxation, there having been no reference filed, I decline to allow interest from 9th October 2019 to 6th December 2022.

17. The interest shall be calculated from 6th December 2022 when the application for entry of judgment was lodged at 14% p.a until payment in full.

18. Decree to issue.

19. I order that each party shall bear their own costs of the application herein.

20. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF OCTOBER, 2023R.E. ABURILIJUDGE