[2022] KEHC 13839 (KLR)

Advocates v Standard Group Plc (Miscellaneous Civil Application 177 of 2020) [2022] KEHC 13839 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13839 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Civil Application 177 of 2020

JK Sergon, J

October 7, 2022

Between

Makhecha & Gitonga Advocates

Applicant

and

The Standard Group Plc

Respondent

Ruling

1. The advocate/applicant in the present instance has filed the Chamber Summons Reference (“the Reference”) dated August 27, 2021 supported by the grounds set out on its face and the facts stated in the affidavit of advocate Wangeci Mwangi. The applicant sought for the following orders:i.That this Honourable Court be pleased to vary or set aside the decision of the taxing master contained in the ruling delivered on July 8, 2021. ii.That cost of the application/Reference be borne by the respondent.

2. The client/respondent did not file any documents in response to the Reference.

3. This court gave directions on March 16, 2022 that the Reference be disposed of through written submissions.

4. I have considered the grounds set out on the body of the Reference; the facts deponed in the affidavit filed in support thereof; and the contending submissions on record.

5. A brief background of the matter is that the applicant filed the Advocate-Client Bill of Costs dated May 22, 2020 and sought for the total sum of Kshs 780,341/= arising out of HCCC no 225 of 2012 being a defamation claim in which the applicant acted for the respondent as a defendant at all material times.

6. The Bill of Costs proceeded for taxation before the taxing officer, Honourable L. Mbacho and was taxed at the sum of Kshs 351,185/= by way of the ruling delivered on July 8, 2021. A certificate of taxation was subsequently issued on August 19, 2021.

7. Returning to the Reference, it is clear that the order sought therein is for the varying and/or setting aside of the taxation ruling.

8. However, I will first address the sentiments raised by the respondent in its submissions, concerning issues that are substantive in nature and which would therefore necessitate my consideration irrespective of the fact that they were only brought at the submissions stage.

9. On the first preliminary issue touching on the format of the application presently before me, the respondent by way of its submissions dated March 18, 2022 contends that the applicant has approached this court using the wrong format as it ought to have filed a Reference, citing among others, the case of Keziah Gathoni Supeyo v Yano t/a Yano & co Advocates [2019] eKLR where the court rendered thus:“A certificate of taxation issued by the Registrar or Deputy registrar of the court is appealable to the High court by way of reference as provided for under rule 11(1) of the Advocate Remuneration Order.”

10. From the record, I note that the application filed is in the nature of a Chamber Summons and is seeking to set aside the ruling on taxation.

11. The law and practice surrounding the filing of References is that the same shall be by way of Chamber Summons, as seen under the provisions of Paragraph 11 of the Advocates Remuneration Order, thus:“(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.

12. Upon considering the above, I am satisfied that the applicant has approached this court in the proper manner.

13. On the second preliminary issue concerning whether the Reference is time barred, as earlier mentioned, the respondent contends that the application has been filed out of time and without leave of the court and therefore ought to be dismissed.

14. Upon my study of the record, I note that the impugned ruling on taxation was delivered on July 8, 2021 containing reasons thereof, and hence there was no need for the applicant to apply for the same.

15. According to the provisions of Paragraph 11 (2) (supra), it therefore follows the applicant ought to have filed the Reference within 14 days from the abovementioned date but did not comply. There is also nothing to indicate that the applicant sought for the enlargement of time prior to filing the Reference.

16. Consequently, I am convinced that the Reference is time barred. The upshot therefore is that the Chamber Summons Reference dated August 27, 2021 is hereby ordered struck out with no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ............................J. K. SERGONJUDGEIn the presence of:……………………………. for the Advocate/Applicant……………………………. for the Client/Respondent