[2023] KEHC 27251 (KLR)

Abwao v Mohamed & 2 others (Miscellaneous Application E145 of 2023) [2023] KEHC 27251 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27251 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application E145 of 2023

DKN Magare, J

December 14, 2023

Between

Daniel Ongong’a Abwao

Applicant

and

Mohamed Ali Mohamed

1st Respondent

Mwanajuma Gandani

2nd Respondent

Independent Electoral & Boundaries Commission

3rd Respondent

Ruling

1. This is a Ruling on an Application dated 8th June 2023 seeking to set aside or vary the Ruling on Taxation dated 6th April 2023.

2. The Application also seeks that the Bill of Costs dated 4th March 2019 be taxed afresh before another Taxing Officer.

3. The Application is supported by the Affidavit of Daniel Ongong’a Abwao and is based in the material grounds that:a.The Taxing Officer failed to give reasons for the Award of instruction fees of Kshs. 3,500,000/=.b.The Taxing Officer in failing to take into account relevant factors and principles in taxing the Bill of Costs.c.The Taxing Master erred in taking into account irrelevant factors in taxing the Bill of Costs.

4. The 1st Respondent filed a Replying Affidavit deponing inter alia that:i.The Applicant was making this as second reference from taxation and was as such forum shopping.ii.The Applicant did not request for reasons.iii.The Applicant was attempting to charge twice.iv.The Taxing Master exercised her discretion correctly.

Analysis 12. I have perused the impugned Ruling and the rival Application and Response thereto.

13. I note that the award of instructions fees of Kshs. 3,500,000/= as costs was not initiated by the Taxing Master. It was an award originating from the Judgement of Court dated 23rd February 2018. The Award was in respect of Election Petition No. 6 of 2017.

14. However, the Party and Party Bill of Costs date 4th May 2019 was filed by the 1st Respondent for Taxation before the Deputy Registrar of the Court but in the same Petition. This was in order. In Donholm Rahisi Stores (firm)vEA Portland Cement Ltd [2005] eKLR WaweruJheld:“Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing officer by the Advocates Remuneration Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under Rule 11 of the Advocates Remuneration Order.

15. Further, Rule 11 of the Advocates Remuneration Order provides in extenso doth:“11. Objection to decision on taxation and appeal to Court of Appeal(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”

16. The Applicant herein was aggrieved and preferred this Miscellaneous Application. I understand that the Taxing Officer, upon delivering a decision on the Bill of Costs dated 4th May 2019 was functus officio. However, the Judge would not be functus officio.

17. Either party in the Taxation proceedings had the leeway to file a reference before the Judge if aggrieved. However, the Reference was to be filed within the same Taxation proceedings and not as a fresh Application.

18. The Applicant was required to file a Chamber Summons Application within the Election Petition No. 6 of 2017. It was therefore untenable for the Applicant herein to lodge a fresh Application through this Miscellaneous Application.

19. As such this is a proper Application for striking out.

Determination 12. The upshot of the foregoing is that the Application dated 8th June 2023 is hereby struck out with no order as to costs.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Miss Otuya for the ApplicantNo Appearance for the Respondent.Court Assistant - Brian