[2022] KEHC 3380 (KLR)

Advocates v Vaghjiayani Enterprises Limited (Miscellaneous Cause E140 of 2018) [2022] KEHC 3380 (KLR) (Civ) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3380 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Miscellaneous Cause E140 of 2018

WA Okwany, J

May 5, 2022

Between

Osundwa & Company Advocates

Applicant

and

Vaghjiayani Enterprises Limited

Respondent

Ruling

1. This ruling is in respect to the client/applicant’s reference dated May 6, 2021 seeking the following orders: -1. Spent.2. Spent.3. That this honourable court be pleased to grant the applicant leave to file a Reference Out of Time against the impugned Ruling.4. That the honourable court be pleased to vacate and set aside in its entirety the Ruling on Taxation of the respondent’s Bill of Costs delivered on July 17, 2019 and refer the matter for fresh taxation before a Taxing Master.5. That the costs of this Application be provided for.

2. The application is supported by the affidavit of Mr. Harry Bob Mosi and is premised on the grounds that: -1. That the respondent represented the Applicant vide Public Procurement and Review Board Cause No 6 of 2018. 2.That the respondent thereafter lodged an Advocate/Client Bill of Costs against the applicant dated October 24, 2018 to which the Applicant, inter alia, preferred a Notice of Preliminary Objection, to wit, that the Bill of Costs contravened section 51 (1) of the Advocate’s Act which stipulates that such a Bill can only be filed in court by way of an Application.3. That although the impugned Ruling was delivered on the 17th day of July 2019 the Counsel for the applicant was under an honest but as it later emerged, erroneous belief that the said Ruling had been read on the 25th day of July 2019, which Ruling however, never addressed itself to the Notice of Preliminary Objection.4. That acting on the said honest but erroneous belief, the Applicant moved the Deputy Registrar under section 11 (1) of the Advocates Remuneration Order seeking reasons informing taxation with regard to Item No of the Bill anchoring the 14 days required to so move the Deputy Registrar on the date of the 25th day of July 2019 instead of the 17th day of July 2019. 5.That when it became increasingly likely that there would not be any response from the Deputy Registrar, the applicant then filed a Reference against the impugned Ruling being Nairobi High Court Misc. Civil Application Cause No E421 of 2019. 6.That by a Ruling delivered on the 11th day of March 2021, the Reference was Struck Out for having been filed out of time without leave of the court.7. That the foregoing clearly brings out the reasons for the delay in filing a Reference within the timelines required by the law.8. That further, following the Striking Out of the Reference, the applicant has moved without delay in filing the present Motion.9. That the power to enlarge time allowing a party to file a Reference out of time is at the discretion of the Court and it is the humble view of the applicant that the Notice Of Preliminary Objection to the impugned Ruling prima facie raises an arguable point to be considered on merits during the prosecution of the Intended Reference.

3. The advocate opposed the reference through the replying affidavit Mr. Michael Osundwa Sakwa Advocate who states that the application is fatally defective and a gross abuse of the court process as the applicant has filed several applications before different courts seeking the same orders with an aim of frustrating the respondent’s realization of its professional fees. He contends that the reference offends paragraph 11(4) of the Advocate (Remuneration) Order and adds that the applicant ought to have filed the reference within 14 days from the date of the ruling. It is the respondent’s case that no sufficient grounds have been advanced for the failure to file the reference within the prescribed timelines.

4. The Advocate also filed a Preliminary Objection (PO) dated May 17, 2021. The PO is premised on the ground that this court lacks the jurisdiction to hear and determine the reference because it was filed out of time without leave following the withdrawal of a similar application on March 26, 2021.

5. The Client opposed the PO through the replying affidavit of Mr. Harry Bob Mosi Advocate who avers that the court has the jurisdiction to determine the reference.

6. I will consider the Preliminary Objection first as its outcome will determine the fate of the application.

Preliminary Objection 7. What constitutes a preliminary objection was discussed in Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd[1969] EA 696 as follows: -“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit per Sir Law J.A.”Sir Charles Newbold P. in the same case stated that: -“A preliminary objection is in the nature of what use to be a demurer. It raises a pure point of law which is argues on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought if exercise of judicial discretion.”

8. The above principles were succinctly expounded in Owners of the Motor Vessel Lilian ‘S’ vs Caltex Kenya Limited (1989) KLR 1, as follows:“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

9. In the Matter of Advisory Opinions of the Supreme Court underarticle 163(3) of the Constitution- Constitutional Application No. 2 of 2011 the Supreme Court stated; -“The Lillian ‘S’ case [[1989] KLR 1] establishes that jurisdiction flows from the law, and the recipient-court is to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.”

10. The instant reference challenges the decision of the Taxing Master and is brought under Paragraphs 11 (1) of the Advocates Remuneration Orderwhich provides as follows: -(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.

11. I find that the reference is properly before this court and that the court has the jurisdiction to hear and determine it. I also note that leave to file the reference out of time is one of the prayers sought in the reference, in which case, the Advocate cannot claim that the application has been filed out of time without leave. I find that the PO is not merited and I therefore strike it out with no orders as costs.

12. Turning to the reference, the Client argued that the period within which the Taxing Master ought to forward the reasons for taxation is not provided for and that the request for reasons for taxation was made 19 days after the taxing master’s decision. The applicant maintained that the Taxing Master wrongly exercised her discretion by awarding instruction fees of Kshs 3,000,000 without giving reasons.

13. The respondent, on the other hand, argued that the application is res judicata as the issues raised in the application had been dealt with in previous applications.

14. Paragraph 11(1) of the Advocates Remuneration Order requires the applicant to file the reference within 14 days of the ruling. The said Paragraph provides that: -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.

15. It was not disputed that the applicant filed the reference out of time. The Advocates’ case was that the Client has not satisfactorily explained the delay. The Client, on the other hand, attributed the delay to the failure by the Taxing Master, to furnish them with the reasons for the Taxation in good time.

16. In the case ofFahim Yasin Twaha v Timamy Issa Abdalla & 2others [2015] eKLR the Supreme Court discussed the general principles governing extension of time thus: -“As regards extension of time, this court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:-“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.“… we derive the following as the underlying principles that a court should consider in exercising such discretion:1. extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the court;2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of thecourt;3. whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of thecourt;5. whether there will be any prejudice suffered by the respondents, if extension is granted;6. whether the application has been brought without undue delay; and7. whether in certain cases, like election petitions, public interest should be a consideration for extending time”.

17. In George Kagima Kariuki & 2others v George M Gichimu & 2others [2014] eKLR it was held that: -“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.”

18. Similarly, in Stanley Kahoro Mwangi & 2others v Kanyamwi Trading Company Limited [2015] eKLR the court was of the view that: -“A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercised.”

19. The common thread that runs through the above-cited decisions is that the court has the discretion to allow an application for extension of time where the applicant demonstrates that there was sufficient cause for the delay. In the instant case, the applicant took more than two years to file the reference. I find that the delay is inordinate that that the applicant has also demonstrated that there was sufficient cause to warrant the exercise of this courts discretion in its favour.

20. My above finding on the issue of delay notwithstanding, I am still minded to consider the issue of whether the decision of Taxing Master should be set aside. Courts have taken the position that they will only interfere with the decision of the Taxing Master where there is an error of principle or where the court is of the view that the award so high or so low as to amount to an injustice.

21. In the case of Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6others[2006] eKLR it was held that: -“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.

22. In Machira & Co Advocates v Magugu [2002] 2 EA it was held that: -“As I understand the practice relating to taxation of bills of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a Reference to a judge in accordance with paragraph 11 of the Advocates Remuneration Order.”

23. The applicant herein faulted the Taxing Master for awarding instruction fees of Kshs 3,000,000 without giving reasons. I note that the Taxing Master held as follows in respect to instruction fees: -In light of the said decision, I find that what was before the review Board was not the contract amount but the process of the tender award. The value of the subject matter is therefore not ascertainable. Consequently, the provision of paragraph 9 of Schedule II of the above mentioned remuneration order applies the same provides as follows;where the value of the subject matter cannot be ascertained such costs as the court in its discretion but not less than Kshs. 35,280 if undefended or unopposed and (subject to any special order for good reason connected with the nature and importance of the difficulty or the urgency of the matter) such figure being left to the discretion of the court.In exercise of my discretion while guided by the provisions of paragraph 3 above, I find the sum of Kshs 3,000,000/= sufficient to cover the item on instruction fees.Item No 1 is therefore taxed at Kshs 3,000,000/- A sum of Kshs 57,000,000 is taxed off.

24. I note that the Taxing Master based the assessment of instruction fees on Schedule II of paragraph 9 of theAdvocates Remuneration Orderbecause the subject matter of the suit could not be ascertained from the pleadings. This is to say that the Taxing Master exercised her discretion in awarding a sum of Kshs 3,000,000. I find that the amount awarded is neither too high to amount to unjust enrichment nor too low to be an injustice to the other party. I therefore do not find any error of principle that would warrant this court’s interference with the award.

25. In conclusion, I find that the application dated 6th May 2021 lacks merit and I therefore dismiss it with costs the respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF MAY 2022. W. A. OKWANYJUDGEIn the presence of: -Ms Sheunda for Respondent.Ms Naswa for the Applicant.Court Assistant- Sylvia