Keziah Auma

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC CIVIL APP NO. 20 OF 2019 RABALA & CO. ADVOCATES……………………………………APPLICANT/RESPONDENT VERSUS Client………………………….…………………………………...1St RESPONDENT/APPLICANT Client……………..……………………………………..…....…2ND RESPONDENT/ APPLICANT 1st AND 2ND RESPONDENTS/APPLICANT’S SUBMISSIONS Your Lordship what is before you for consideration is the 1st and 2nd Applicant’s application dated- seeking the following orders; 1. Spent. 2. Spent. 3. Spent 4. That this Honourable Court be pleased to set aside, vary and/or review the ex-parte proceedings that took place on- and the consequential judgement and/or orders ex debitio justiae 5. That this Honourable Court be pleased to set aside, vary and/or review the ex-parte proceedings that took place on- and the resultant certificate of costs ex debtio justitiae. 6. That upon grant of prayer 5 above, the Honourable Court be pleased to set down the Bill of Costs dated- for fresh taxation before the Deputy Registrar. 7. That in the alternative to prayer 5 and 6 above, the Honourable Court be pleased to grant the Applicants/Respondents Leave to file a reference out of time against the Certificate of costs. This Application arises out of an advocate client relationship between the parties herein wherein the Applicants herein engaged the Respondent/Advocate for professional services. The Respondent/Advocate was to act as the Applicant/Client’s legal Counsel for one year beginning- to-. The advocate client relationship became strained following the Respondent/Advocate recording an unsanctioned consent in one of the Cases in which he was acting as legal counsel for the Applicants/Clients herein. The Respondent/Advocate thereafter filed an advocate-client bill of costs amounting to Kshs. 14,639,942.40/=. It is the said bill as well the cumulating events thereafter that has caused the Applicant/Client herein to file the Application herein. ISSUES FOR DETERMINATION A. WHETHER THE APPLICANT/RESPONDENT HAS MEET THE THRESHOLD FOR THE ORDERS SOUGHT. It is trite law that in an application for the setting aside of ex parte orders the Applicant ought to demonstrate sufficient cause so as to justify the Honourable Court exercising its discretion. It is our humble submission that the Respondent’s herein were not served properly or at all with the bill of costs or taxation notices or any documents relating to this matter prior to-. a. Service Your Lordship, the parties herein were engaged in Advocate Client relationship. The Respondent’s herein engaged the Applicant/Advocate on or about September 2017 vide a retainer agreement. During the pendency of the said retainer the Respondents herein lodged a suit being Kisumu HCCC 18 OF 2017 Galexon Kenya Limited vs Centre for Youth Linkages and Empowerment Programmes and Two others. The said relationship crumbled and the Respondents engaged another firm to take over from the Applicant/Advocate herein when he stated that the Respondents owed him a sum of Kshs. 40,000,000/= in legal fees. The Respondent never heard from the Applicant/Advocate herein till the- when the Applicant purported to serve him with a Notice to show cause which was due on-. The 1st Respondent which was the instructing client is a body corporate under the Non-Governmental Organisation Act. Under the provisions of Order 5(3) of the Civil Procedure Rule 2010, service upon a corporation must be first upon the either the directors, secretary or if the process server is unable to find the said officers by leaving it at the registered office of the corporation among other alternatives. We submit that the 1st Respondent was never served as required and directed by the law. The affidavits of service marked as DMM-5 which the Applicant herein relied on in the ex parte proceedings we submit are incoherent and do not demonstrate proper service to the level demanded by the provisions of Order 5. The said affidavits fail to disclose where exactly the 1st Respondent was served, (whether residential or at the registered offices), whom they served, how the process server was able to identify the 2nd Respondent as a director of the 1st Respondent. The provisions of Order 5 rule 15(1) of the Civil procedure rules provides that as follows; “The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons.” The process server in his affidavit of service dated- forming part of the annexure marked DOR-3 annexed to the Applicants/Advocates Replying affidavit in paragraph 4 refers to going to House Number 2 Swiss Cottage Riverside Drive where he was informed by the guard that the Respondent vacated the Premises on-. Your Lordship this is the same residence and /or office that he purports to have been serving the 2nd Respondent since the inception of the matter herein. The Applicant we submit cannot have it both ways. Furthermore, following the taxation of the bill of costs and issuance of the certificate of costs the Applicant was required to file an application for conversion of the said certificate into a judgement under Section 51 (2) of the Advocates Act. Your Lordship, despite several references to the said application as being dated- in the various notices purported to be served by the Applicant on the Respondents, the same was never served upon the Respondents herein. No affidavit of service was presented to confirm service of the said application at all. W submit that it was incumbent on the Applicant/Advocate herein to ensure that each time he served any pleadings upon the Respondents herein, the same ought to have been in strict adherence to the provisions of Order 5 rule 5 of the Civil Procedure Rules. We rely on the case of Agigreen Consulting Corp Limited v National Irrigation Board [2020] eKLR where the High Court while dealing with similar issued stated as follows; “It must be recalled that default judgment is entered on the basis of an affidavit of service which must, on its face show, that service has been effected in accordance with the applicable rules.” We ask Your Lordship to find that there was no service at all or proper service of the Bill of costs dated-, application dated- as well as the Taxation notices as alleged by the Applicant. b. Non-Disclosure The Applicant/Advocate herein filed a bill of costs dated- wherein he sought to recover the legal fees for representing the 1st Respondent herein in Kisumu HCCC NO. 18 of 2017. The said suit was filed during the pendency of a retainer agreement that was signed by the parties herein. It was a term of the said retainer that should any dispute arise regarding the terms of the said retainer the first port of call would have been arbitration. It is our humble submission that the Applicant/Advocate being an officer of the Court is duty bound to assist the Court to arrive at a just and fair determination. This includes being candid with the Honourable Court particularly where the matter proceeds ex parte. The Applicant/Advocate herein has not denied the existence of the said retainer agreement neither has he challenged the same. The same was therefore binding on the parties as at the time of filing the bill of costs. In filing the bill of costs dated- demanding his legal fees, we submit that the Applicant/advocate was duty bound to inform the Taxing master and/or the Court that there was a retainer agreement. The Applicant instead chose to hide this fact. It is trite law that an advocate who enters a binding agreement with a client in regard to the payment of his fees cannot thereafter avoid the same by seeking to tax his costs in accordance with the Remuneration order. We refer Your Lordship to the case of Katwa Kigen t/a Katwa & Kemboy Advocates v Joyce Reinhard [2020] eKLR where the Environment and Land Court held; “By that agreement, it is evident that the Advocate accepted to be paid fees that was less than that provided under the Advocates Remuneration Order. He is therefore estopped by his conduct from demanding his rightful fees from the Applicant and this Court will not come to his aid to help him wriggle out of that relationship.” Had the Honourable Court been made aware of this fact, the bill would not have been taxed at all or the manner in which it had. The Applicant is therefore guilty of obtaining orders by way of material non-disclosure. It is trite law that ex-parte orders obtained by way of material non-disclosure are liable to be set aside by the Honourable Court. We refer the Honourable Court to the Case of Republic v Principal Magistrates Court at Milimani & another Ex parte Applicant Nuh Abdille Hassan; Halima Mahmood Ali (Intersted Party) [2021] Eklr where the Environment and Land Court while dealing with an issue of non-disclosure stated; It is now an established principle in our civil legal system that a party seeking an ex-parte order is obligated to make full and frank disclosure of all material facts relating to the matter before court. We ask this Honourable Court to find that the Applicant obtained the orders of taxation on- as well as the orders of- by way of material non-disclosure and set aside the same aside. We ask that the Honourable Court find in favour of the Respondents herein and allow the Application dated-. We so pray.