[2023] KEELC 685 (KLR)

Ameli Inyangu & Partners Advocates v Muinde & another (Miscellaneous Application 18 of 2022) [2023] KEELC 685 (KLR) (8 February 2023) (Ruling)

Neutral citation: [2023] KEELC 685 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Miscellaneous Application 18 of 2022

EK Makori, J

February 8, 2023

IN THE MATTER OF TAXATION BETWEEN THE ADVOCATE & CLIENT

Between

Ameli Inyangu & Partners Advocates

Applicant

and

Jimmy Ndaka Muinde

1st Respondent

Nushka Muinde

2nd Respondent

Ruling

1. The Applicant seeks that this court sets aside the Ruling of the Bill of Costs delivered on the 21st of September 2022 and the Proceedings of the 22nd of August 2022.

2. The Applicant prays further that the Advocate’s Bill of Costs dated 29th March 2022 do commence de novo.

3. On 1st April 2022, the Respondent herein filed a Bill of Costs dated 29th March 2022 seeking to have the same taxed at the prayed amount of Kshs. 2,257,484. 68/-.

4. The court directed parties to canvass the current application by way of written submissions. The issues that fall for the determination of this court are: -a.Whether this court can vary and/ or set aside the Ruling of the learned Taxing Master delivered on 21st September 2022;b.Whether there are sufficient reasons for setting aside the ex parte Ruling and directing a de novo hearing.

5. The Applicant submits that the taxing of the said Advocate/Client Bill of Costs proceeded without any formal objections and/or submissions by the clients or the Applicant’s Advocate as the same was to be done after service of a further affidavit by the Respondent.

6. The further affidavit was only effected upon the Applicants several days after the date for taxation had been set and only a day to the date reserved for delivery of the Ruling on the taxation.

7. Because of the previously mentioned acts by the Taxing Master, the Applicants were denied an opportunity to file their objections and/or submissions on the said Bill of Costs at the taxation thereof.

8. The pertinent issues affecting the Applicant’s right to be heard were raised before the Taxing Master, but she proceeded to deliver the Ruling.

9. The Applicant contends that the application herein was brought by way of Chamber Summons in accordance with Rule 11(2) of the Advocates (Remuneration) Order, which states inter alia that: -“…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”

10. The Applicant also claims that this court has broad discretion to reverse ex parte orders, citing the case of CMC Holdings Ltd v Nzioki [2004] KLR 173, which holds that reversing ex parte orders is intended to relieve parties of untold suffering if a court commits an error or mistake by proceeding ex parte without hearing all affected parties.

11. The Applicant has also questioned the use of a Valuation Report, which was included in the proceedings, to determine the value of the subject matter. The case of Kenya Forest Service v Wanyama CS Company Advocate [2021] eKLR is cited, in which reliance on a valuation report was overturned because it was not part of the proceedings.

12. This court should also consider the technical hitch experienced in joining the virtual platform in use by the Taxing Master as a basis for setting aside the ex parte Ruling.

13. The Applicant thinks that failure to attend the virtual hearing was a technical hitch that should not be visited on the Applicant and that courts should strive to do substantial justice in harmony with Art. 159(2) (d) of the Constitution.

14. The Respondent contends that the Advocate now appearing for the client was never representing the said client in this taxation cause and therefore not competent to appear before that court and this court and whatever documents filed in support of this application ought to be struck out. There is no Notice of Appointment of Advocate in the taxing court and this court. The cases of Elias Muturi Njiru v Nawiri Sacco Society & Anor. [2022] eKLR, Techno Services Ltd v Nokia International Kenya and 3 Others [2020]eKLR, Kenya Building Construction, Timber & Furniture Industries Employees Union v Ms. Newline Furniture Ltd [2017] eKLR are quoted to show the effect of failure by an Advocate to follow the right procedures in the appointment of Advocate and the attendant consequences on documents filed by such an Advocate.

15. On the merits of the application, the Respondent contends that to overturn the findings of a Taxing Master in a taxation, the court must be satisfied that the Taxing Master erred in the application of the principles relevant in cost assessing generally as enunciated in the case of First American Bank of Kenya v Shah and Others [2002] eKLR.

16. According to the Respondent, what the court needs to check is whether the Taxing Master erred in principle and reached a wrong finding in the taxation. Proceeding ex parte does not impute misdirection on the part of the Taxing Master that she adopted the wrong principles in taxation. Paragraph 76 of the Advocates Remuneration Order allows the Taxing Master to proceed ex parte in default of the appearance of either one or all the parties. The case of Ndungu Njoroge & Kwach Advocates v National Bank of Kenya Ltd [2020] eKLR endorses this position. In the present case, the Taxing Master was satisfied that the parties had sufficient notice of the taxation date but ignored to attend.

17. The Respondent further maintains that in any event, the focal contention in this application is the manner the Taxing Master proceeded ex parte. It is not the amount as taxed. The right procedure should have been to approach the Taxing Master to set aside the ex parte taxation and re-hear the Applicant and not by filing an apparent Appeal on the taxation to this court. This court has no jurisdiction to entertain the application as it is. It is not a Reference. The case of Masika & Koross Advocates v Njama Ltd [2015] eKLR is cited.

18. The Respondent further reasons that if the court is inclined to exercise discretion to set aside the ex parte Ruling, orders, and proceedings, the principles of doing so are as set in the leading decision of Shah v Mbogo [1967] EA 116 where the court held that: -“The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”

19. The Respondent is of the view that the Advocate for the client in this matter is to blame for failing to yield to the instructions and directions as issued by the Taxing Master on the deadlines to respond leading to the Taxing Master proceeding ex parte. Courts are now of the opinion that mistakes by Counsel should be directly visited on him and not the client as in this case. Counsel for the client should take the barbs and not his client (see the case of Charles Omwata Omwoyo v African Highlands & Produce Co. Ltd [2002] eKLR. There was nowhere in the court's order that the client or his Counsel wait for service of any further affidavit from the opposing party before responding. The Respondent concludes that the Applicant or his Counsel acted indolently in following the court's directions, which resulted in the subsequent ex parte proceedings and Ruling.

20. I do not intend to delve so much into the issue of representation of the Applicant in this matter as proposed in the submissions by the Respondent. This issue ought to have been raised before the Taxing Master. I also do not want to go the Charles Omwata Omwoyo (supra) path. I will promptly deal with the basic issues raised in the current application.

21. The fundamental issue to me is whether to upturn the ex parte proceedings and Ruling as delivered by the Taxing Master. The record shows this matter came before the learned Taxing Master on four occasions as follows: -a.On 9th May 2022 the learned Taxing Master granted the Respondent leave of 14 days to file a further affidavit to the Bill of Costs and serve the same. Thereafter the Applicants and/or their Advocates were directed to file their submissions within 14 days.b.By 4th July 2022 the Respondent had not complied with the said directions prompting the learned Taxing Master to issue further directions similar to the ones issued on 9th May 2022 save for the fact that the days for compliance were reduced to 7 days.c.On 22nd August 2022, the Respondents appeared in court and confirmed service of the affidavit on the Applicants as directed by the court. M/s Azei for the Respondent said she had not received a response from the Applicants. The Court set a Ruling date for 21st September 2022. It is that Ruling that activated the present motion.

22. The Applicant’s Counsel has introduced a tangent viewpoint - that on 22nd August 2022, he attempted to join the Virtual Court unsuccessfully from 8:50 am to 11:00 am which averments are premised on the sworn affidavit of Mwangi Munyuga dated 28th September 2022. The said Advocate was in constant communication with Ms. Otuya, Advocate on the issue, to determine the source of the problem with the Virtual Court. He claims that Ms. Otuya, Advocate, informed him that the matter would be rescheduled for a later date. On September 21, 2022, the learned Taxing Master issued a Ruling effecting the taxed costs contained in the Bill of Costs, despite the aforementioned issues being brought to the learned Taxing Master's attention.

23. The technical snag mentioned by Counsel, as well as the averment that another future mention date was to be granted by the Taxing Master, are not discernible from the record.

24. The Applicant has buttressed his motion under Rule 11(2) of the Advocate (Remuneration) Order. which states that: -“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”

25. From the strand of authorities emanating from this court, any decision springing from a Taxing Master can be impugned in this court by dint of Rule 11 of the Advocates Remuneration Order. In the case of Ndungu Njoroge & Kwach Advocates v National Bank of Kenya Ltd [2020] eKLR, Odero J. opined as follows: -“……. it is settled law that any grievance emanating from a Rulin on Taxation can only be ventilated through Paragraph 11 of the Advocates Remuneration Order. In Machira & Co. Advocates v Magugu [2002]2 E.A Hon. Justice Aaron Ringera (as he then was) held as follows: -“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 concerning 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.”(16)Similarly, in Gacau Kariuki & Co. Advocates v Allan Mbugua Ng’ang’a [2012] eKLR it was held thus:-“I am also of the same school of thought as the learned judges’ as expressed above. A reference is not an appeal although it may be in the nature of one. In a reference, the court is more concerned with whether or not the taxing master has misdirected himself on a matter of principle. If the same is found to have been the case the usual course is to remit the matter back to the taxing master with the necessary directions. The decision whether or not to proceed with taxation is an exercise of discretion and if he proceeds ex parte in circumstances in which he should not have so proceeded, in my view, that would amount to an error of principle and the Judge may remit the matter back with directions that the bill be re-tax in the presence of the parties. It is therefore my view, and I so hold, that the only recourse available to the client herein was to come by way of a reference.” [own emphasis](17)It is clear from the above decisions that the only avenue available to a party who wishes to object to a decision following a Taxation would be to approach the Court under Paragraph 11 of the Advocates Remuneration Order as the Client herein has done. Accordingly, I find no merit in the Preliminary Objection dated 19th June 2019 and the same is hereby dismissed in its entirety.”

26. The reasoning in the cited authorities persuades me. Having said that, I believe the Applicant approached this court under the correct legal provision.

27. What remains is whether this court can then set aside the ex parte proceedings and the resultant Ruling and order for a de novo hearing before the Taxing Master.

28. The principles of setting aside ex parte proceedings, orders, and judgments are as deeply ingrained in the leading authority in this field - Shah v Mbogo [1967] EA 116 where the court held that: -“The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”

29. When challenging the decision of a Taxing Master who proceeded ex parte as in this case, Kamau J. has provided a roadmap as stated in the case of Masika & Koross Advocates v Njama Ltd [2015] eKLR, as follows: -“The court’s position was informed by the provisions of Paragraph 76 of the Advocates Remuneration Order that empower the Deputy Registrar to proceed ex parte in default of appearance of either or both of the parties. It is expected that a taxing master who proceeds ex parte, must have satisfied himself that an opposing party has had adequate notice of the taxation. If he subsequently finds that there was no proper service, he would also have the power to set aside his order and give such an opposing party opportunity to be heard.Indeed, the court does not see any provision of the law that would prevent a taxing officer from allowing an application for setting aside his order as a result of non-attendance by one party if he is satisfied that such party had no notice of such taxation. This is a basic rule of natural justice. That notwithstanding, Paragraph 13A of the Advocates Remuneration Order empowers a taxing master to exercise his discretion with a view to determining any dispute before him.Paragraph 13 A of the said Advocates Remuneration Order provides as follows: -“For the purpose of any proceeding before him, the taxing officer shall have power and authority to summons and examine witnessed, to administer oaths, to direct the production of books, papers and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him (emphasis court).”It would therefore not be necessary for a party to file an application at the High Court purporting to ask it to oversee or review the actions by a taxing master as doing so would amount to the court sitting on appeal on the decisions of a taxing master without having all the information such a taxing master took into account before proceedings ex parte.It is the view of this court that if a taxing master refused to give an opportunity to such a party seeking to set aside his order for proceeding ex parte, such party can then file a reference under Paragraph 11 of the Advocates Remuneration Order challenging the decision of a taxing master.”

30. I completely agree with Kamau J.'s stance. There is no proper Reference here. The motion seeks to vacate the Taxing Master's ex parte proceedings, orders, and Ruling. The setting aside is said to be due to the Applicant's Counsel being unable to access the virtual hearing when the Taxing Master proceeded ex parte. Other reasons include a Counsel misinforming the Applicant's Advocate that the matter had been scheduled for a later date. Counsel goes on to say that the Valuation Report used in the taxation ought not to have been included in the proceedings. Not everything that came before me is on the record as it happened before the Taxing Master.

31. I cannot fault the Taxing Master's exercise of discretion, I will be acting in vacuo – the issues raised here were never raised before her – to consider upholding or rejecting. The first port of call was in my view, to bring to the Taxing Master's attention the reasons for failing to appear in court on the appointed date and to request a hearing on the disputed items in the taxed Bill. If the Taxing Master does not yield, a Reference is then returnable to this court in accordance with Rule 11 of the Advocates (Remuneration) Order.

32. As it stands, I am unable to identify any accident, inadvertence, or excusable mistake or error arising from the ex parte proceedings and subsequent Ruling by the Taxing Master. I am unable to call into question the Bill of Costs as taxed. No item has been challenged as taxed. I have no grounds to attack or order the censor or removal of the Valuation Report allegedly used to calculate the value of the subject matter, as well as the instruction fees, from the record.

33. As a result, the application dated September 28, 2022, is hereby dismissed with costs.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 8TH DAY OF FEBRUARY 2023. E. K. MAKORIJudgeIn the Presence of: -Mr. Adhoch for the RespondentsIn the absence ofMr. Munyuga for the Applicants