Njuguna Kahari & Kiai Advocates v Gacanja

On cross-examination, the Respondent maintained that he never instructed the Applicant to act for him in the primary suit. The Respondent contended that since he never instructed the Applicant to act for him, the Applicant rendered no services to him for which he could claim fees. The Respondent contended that if the Applicant rendered any services in the primary suit, he was not a party to the same. 4. The Deputy Registrar considered the Respondent’s objection to the Applicant’s bill of costs and made a ruling on the same on 11th July 2024. In her ruling, the Deputy Registrar made a nding that the Respondent did not instruct the Applicant to act for him in the primary suit and since there was no advocate and client relationship between the parties, the advocate and client bill of costs led by the Applicant had no basis. The Deputy Registrar struck out the bill of costs for want of jurisdiction. The application before the court 5. What is now before me is the Applicant’s Chamber Summons application dated 23rd July 2024 brought under Paragraph 11(2) of the Advocate’s Remuneration Order seeking an order that the court be pleased to review, vary and/or set aside the ruling and order of the Deputy Registrar made on 11th July 2024 striking out the Applicant’s bill of costs dated 17th August 2023. The Applicant also sought an order that the Applicant’s bill of costs be taxed by a dierent taxing ocer. 6. The Applicant’s application that was supported by the adavit of Paul Njuguna was brought on the ground that the taxing ocer erred in her nding that there was no advocate and client relationship between the Applicant and the Respondent. The Applicant averred further that the Deputy Registrar erred in failing to consider the pleadings that were led by the Applicant on behalf of the Respondent in the primary suit. 7. The Respondent opposed the Applicant’s application through Grounds of Opposition dated 23rd September 2024 in which the Respondent contended that the application was incompetent and was fatally defective and amounted to an abuse of the process of the court. The Applicant’s application was heard by way of written submissions. The Applicant led its submissions dated 7th October 2024 while the Respondent led his submissions dated 30th October 2024. I have considered the application, the grounds of opposition led by the respondent and the submissions by the advocates for the parties. The issue that was before the taxing ocer for determination was whether there was a client and advocate relationship between the Applicant and the Respondent. I agree with the Respondent that the burden was upon the Applicant to prove that it had been instructed by the Respondent to act for him in the primary suit. The Respondent admitted in his submissions that the retainer can be express or implied. This court handled the primary suit. When the Deputy Registrar delivered her ruling on the Respondent’s preliminary objection, this court had already delivered its judgment in the primary suit on 4th July 2024. I have noted from the ruling of the Deputy Registrar that the Deputy Registrar called for the primary suit le and perused the same. It is common ground that the Applicant entered appearance and led a statement of defence in the primary suit on behalf of the Respondent. On crossexamination before the Deputy Registrar, the Respondent admitted that he was served with Summons to enter appearance in the primary suit. The Respondent admitted further that the Applicant was known to him and was acting for him in several matters. The statement of defence that was led by the Applicant on behalf of the Respondent was not a mere denial of the claim in the primary suit. The defence was detailed. I agree with the Applicant that the Deputy Registrar did not consider or take into account the memorandum of appearance and the statement of defence that the Applicant led on behalf of the Respondent in the primary suit. If the Deputy Registrar had considered the said memorandum of appearance and the statement of defence, the Deputy Registrar would not have come to a nding that there was no advocate and client relationship between the Applicant and the Respondent. In my view, the instruction by the Respondent to the Applicant in the primary suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13804/eng@2024-12-11 2

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could be implied from these pleadings. There was no way in which the Summons to enter appearance together with the plaint served upon the Respondent could have reached the Applicant’s oce without the Respondent’s knowledge. The Applicant could not also have come up with the kind of defence that it led in the primary suit without instructions. I, therefore, agree with the Applicant that the Deputy Registrar erred in her nding that there was no advocate and client relationship between the Applicant and the Respondent. 8. As concerns the Respondent’s contention that the Applicant’s application is defective for want of a Notice of Objection, I nd no merit in the same. The Deputy Registrar did not tax the Applicant’s bill of costs. The bill was struck out for want of jurisdiction. There was therefore no taxation to which the Applicant could have led an objection. In the circumstances, the Applicant was entitled to le a reference without the need to rst le a notice of objection under Paragraph 11(1) of the Advocate’s Remuneration Order. The reference was led within 14 days of the ruling by the Deputy Registrar. I nd no defect in the Applicant’s application. Conclusion 9. In conclusion, I nd merit in Chamber Summons dated July 23, 2024. The ruling and orders made by the Deputy Registrar, Hon. M.Shimenga on July 11, 2024 are set aside. The Applicant’s bill of costs dated August 17, 2023 is remitted back to the Deputy Registrar for taxation on merit. Each Party shall bear its own costs. DATED AND DELIVERED AT KISUMU ON THIS 11TH DAY OF DECEMBER 2024 S. OKONG’O JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: Mr. Mugo for the Applicant N/A for the Respondent Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13804/eng@2024-12-11 3

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