[2022] KEHC 11486 (KLR)

Adul v Standard Group Ltd & another (All acting as ODM Task Force); Ogwen & 3 others (Respondent) (Civil Appeal 23 of 2016) [2022] KEHC 11486 (KLR) (Civ) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11486 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 23 of 2016

JN Mulwa, J

June 9, 2022

Between

Elijah Adul

Applicant

and

Standard Group Ltd

1st Applicant

Geoffrey Mosoku

2nd Applicant

All acting as ODM Task Force

and

Oduor Ogwen

Respondent

David Olima

Respondent

Ronald Ngeny

Respondent

Betty Syengo

Respondent

Ruling

1. By a chamber summons application dated 24/9/2021, the plaintiff/applicant seeks orders:a)Spentb)That there be a stay of execution of the certificate of costs.c)That the court do extend time to issue notice to the registrar and to file this reference.d)That the respondent objects to the decisions of the taxing officer delivered on 26/8/21. e)That the decision be set aside.f)That this honourable court do remit the bill for taxation.g)The costs for this application be awarded to the respondent/applicant

2. On grounds that the taxing master failed to take into account previous decisions on similar matters, and applied wrong principles in taxation of the bill of costs. The application is brought under rule 11 and 62A of the Advocates Remuneration Order 2014, and supported by an affidavit sworn on the 24/9/2022 by the plaintiff. The certificate of taxation is dated 15/9/2021 for a sum of Kshs 671,985/= only.

3. The application is opposed by grounds of opposition filed by the 3rd to 6th respondents dated November 16, 2021 on the following grounds:1)That the reference has been filed in violation of rules 11(1) and (2) of the Advocates Remuneration Order and is therefore at the onset fatally incompetent and should be struck out;2)That the applicant has not shown or demonstrated in any event how the taxing master exercised her discretion erroneously or failed to exercise her discretion judiciously;3)That the Taxing Master considered all the relevant factors in arriving at her decision and therefore the reference is not merited;4)That the Taxing Master took into account the principles of taxation in conformity with rule 5 of the Advocates Remuneration Order;5)That the reference is misconceived, is not merited and does not meet the conditions precedent for the grant of the orders sought.

4. In his submissions dated November 23, 2021, the applicant states that the delay to file the reference within time was occasioned by his ill health due to old age, and thus invites the court to exercise its unfettered discretion and enlarge the time.

5. On the other hand, the 3rd – 5th respondents by their submissions dated 11/1/2022 submit that no documents were attached to the supporting affidavit to prove such allegations of ill-health, and old age as alleged.

6. I have considered the parties oral submissions and their affidavits in support and opposition respectfully. Rule 11(1) and (2) of the Advocates Remuneration Order provides the period upon which a notice of objection ought to be filed, being 14 days from date of the taxing officer’s decision. Further, the items being objected to ought to be numerated in the said notice. Upon receipt, the taxing officer is mandated to forward to the objector the reasons for his decision on the objected items.

7. It is upon such receipt that the objector may, within 14 days, by chamber summons file a reference to set aside the decision of the taxing officer. Section 112 of the Evidence Act stipulates that a party who alleges material facts must prove existence of the facts alleged – George Imulu Muhaha vs Gaxo Smithkline Limited [2018] eKLR. The notice of objection to the certificate of costs was not given, and no plausible grounds have been stated, nor proved. The reference as filed is therefore incompetently filed. Thus the issues that fall for determination are:a)Whether the court should extent and enlarge the period for filing the notice and reference out of time.b)Whether the taxing officer’s decision should be set aside.

8. The court’s discretion to do or not to do any act is based on its discretion. However, the said discretion should be exercised judiciously, not on whim, sympathy or caprice – Paul Wanjohi Mathenge vs Duncan Gichane Mathenge [2013] eKLR.

9. The court is obligated to look at the circumstances of each case as to the cause of the delay, period of delay, decree of prejudice to the respondent as stated in the case cited above. See also Henry Mukora mwangi vs Charles Gichina Mwangi – Civil Application No NAI 26 of 2014 where the conditions were settled thus:1)Length of the delay2)Reasons for delay3)Chances of appeal succeeding if application is granted4)Decree of prejudice if application is granted

10. Mativo J in Republic vs Kenyatta University & another ex-parte Wellington Kihato Wamburu [2018] e KLR added a forth reason; if sufficient cause for excusing delay is shown… and stated that if sufficient cause is shown, the court ought to disregard the delay and admit the reference out of time.

11. I have considered the delay in filing the reference. The decision was rendered on the 26/8/2021, and the application filed on the 24/9/2021. The delay is therefore about 28 days. Mohamed J (as he then was) in George Kagima Kariuki & 2 others vs George M Gichimu & 2 others [2014] e KLR held that”“the law does not set out only minimum or maximum period of delay. All it states is that any delay should be explained. A plausible and satisfactory explanation for the delay is the key that unlocks the court’s flow of discretionary favour...”

12. It is also settled that failure to follow the stated procedure to do a thing, in general terms is not an end in the cause of justice. By article 159 (2) of the Constitution, courts are mandated to administer substantive justice without undue regard to technicalities of procedure.

13. Considering the reason given by the applicant, I find no clear reasons for the delay. None is stated, save to state that the applicant was ill, without any prove of the illness. On the other hand, the delay by 28 days is not too inordinate in the circumstances to deny the applicant justice.

14. Balancing the prejudices that either party may suffer if orders for extension of time are granted, none will suffer so much prejudice that may not be compensated by an award of costs. Ultimately, I find in favour of the applicant, and determine a notice and reference may be filed out of time.

15. The applicant has already filed a reference out of time, and without leave of court. The court will not sanitize an illegality. I shall therefore strike out the illegally and incompetent reference filed herewith, and direct that the applicant proceeds to file a notice of objection to taxation, to the registrar, and reference against the taxing officer’s decision within 21 days of this ruling, failing which this order shall lapse.

16. On the matter of stay of execution of the taxing officer’s decision pending hearing and determination of the reference to be filed, i am guided by well settled principles that security for the due performance of the decree ought to be provided to cushion the respondents as the outcome of the reference is awaited.

17. In Kanu National Elections Board & 2 others vs Salah Yakub Farah [2018] e KLR, the court held that:The court will not interfere with the decision of the taxing master in every case where in its view of the matter in dispute differs from the taxing master, but only when it is satisfied that the taxing master’s view of the matter differs so materially form its own that it should be held to vitiate the ruling…”

18. The applicant has stated that he is old and has no source of income. The applicant in his submissions before the Taxing Officer proposed costs of Kshs 200,000/=. In my mind, this means that he is able to raise the said sum of Kshs 200,000/=. The bill of costs was taxed at Kshs 671,985/= on the 26/8/2021, in favour of the 3rd - 6th defendants.

19. To balance the rival parties’ interests, I find that the applicant is able to raise sufficient funds to cushion the respondent should the reference not be successful.

20. in Chris Munga N Bichage vs Richard Nyagaka Tongi & 2 others [2013] e KLR, the court held that for an order of stay of proceedings of injunction, the law is now settled that the applicant must persuade the court that the intended appeal is arguable, not frivolous and if not granted, the applicant would suffer damage, and the appeal would be rendered nugatory.

21. Having considered the parameters upon which this application ought to be considered, I come to the conclusion that:1)That the certificate of taxation dated 15/9/2021 is hereby set aside.2)That the application is granted leave to file a notice of objection to the registrar, and a reference against the taxing master’s decision out of time, within 21 days of this ruling.3)That the applicant shall deposit a sum of Kshs 335,992/= being 50% of the taxed costs to the 3rd – 6th respondents in court within 30 days of this ruling as a conditional stay of execution.4)Failure to abide by (1) and (2) above, these orders shall automatically lapse, and the 3rd – 6th respondents shall be at liberty to proceed with execution.

DATED SIGNED AND DELIVERED THIS 9TH DAY OF JUNE 2022. J.N. MULWAJUDGE