[2023] KEELC 22148 (KLR)

Carneval Village Apartments v Kithi and Company Advocates (Environment & Land Case 143 of 2023) [2023] KEELC 22148 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22148 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 143 of 2023

JE Omange, J

December 7, 2023

Between

Carneval Village Apartments

Client

and

Kithi and Company Advocates

Respondent

Ruling

1. Vide chamber summons application dated 31st May 2023 the Applicant seeks the following orders:a.Spent.b.That the Applicant be granted leave to file an objection and a taxation reference to this honourable court against the ruling of the National Environment Tribunal delivered on 18th April 2023. c.That the leave granted in the prayer above do operate as stay of execution of the ruling of the National Environment tribunal aforesaid and any other consequential proceedings.d.That the decision of the National Environment Tribunal on the Advocate/Respondent’s bill of costs dated 28th June 2022 delivered on 18th April 2023 be varied and /set asidee.That the advocate-client bill of costs dated 28th June 2022 be taxed afresh by a different taxing officer with appropriate directions.f.Any other relief that the court deems fit to meet ends of justice.g.Costs of the application.

2. The application was supported by an affidavit sworn by Joseph Brunelehner who deponed that the application originates from the ruling of the National Environment Tribunal that rendered a decision on the advocate client bill of costs dated 28th June 2022. That the said bill of costs sought taxation of fees in the sum of Ksh 17,924,987. 40/ for services rendered in Tribunal appeal No 100 of 2012 and the court taxed the same at ksh 5,281,770 wherein the instruction fees was taxed at Ksh 3, 000,0000/= . The instruction fees is the basis upon which this application is brought as the Applicants avers that the amount is excessive as no reasons were given for the award.

3. Counsel for the Applicant submits that the tribunal did not give reasons for the figure stated in the bill of costs. Counsel cited the case of Evans Gaturu Advocate Vs Kenya Commercial Bank Limited(2012) eKLR and Ahmed Nasir Abdikadir & Co Advocates Vs National Bank of Kenya Limited (2006) E.A . Counsel submitted that the tribunal erred in both law and principle by failing to consider the relevant factors in assessing the instruction fees such as the fact that the value of the subject matter in the appeal was not quantified.

4. The application is opposed by the Respondent through their replying affidavit dated 22nd June 2023and submissions filed on 18th August 2023. The respondent opposed the application and submitted that the Applicants had failed to prove that the award of instruction fees of Kshs 3,000,000 is excessive.

5. On the question of stay of execution, counsel for the Respondent submitted that the Applicant had failed to prove that they would suffer any loss if execution proceeded. The Respondent further argued that reasons for the ruling had been given in paragraph 25 of the Ruling hence the argument that the Tribunal erred by not furnishing reasons does not hold water. The respondents cited the following cases First American Bank of Kenya Vs Shah and others (2002) 1EA.64 at 69 and National Oil Corporation Limited Vs Real energy Limited and another (2016)eKLR wherein it was established unless proof of error in principle is established a court cannot interfere with the decision of a taxing officer.

6. Upon consideration of the applications, rival affidavits and submissions, the following are the issues for determination:i.Whether leave should be granted to the Applicant to file an objection and a taxation reference to this honourable court against the ruling of the National Environment Tribunal delivered on 18th April 2023. ii.Whether the taxation should be set aside or varied.iii.Whether stay of execution should be granted

7. On whether leave should be granted, the Applicant states that upon the ruling being delivered they wrote to the court requesting to be furnished with reasons for the ruling which have not been provided hence the present application. The Respondent on his part contends that the reasons were given in the Ruling hence there was no need to repeat them. I completely agree with the reasoning in the case of Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Ltd (2) (2006) 1 EA 5 wherein it was held: -“Although rule 11 (1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons. Where the reasons for the taxation on the disputed items in the Bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.”

8. A similar view was held byOdunga J, in Evans Thiga Gaturu Advocate vs Kenya Commercial Bank Limited [2012] eKLR , in which he stated “It is therefore clear that the interpretation by the court especially the High Court on this issue is far and varied. In my view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles.“However, where there are reasons on the face of the decisions, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of a reference since that insufficiency may be the very reason for preferring a reference”

9. I fully agree with the holding in the above cases but go further to clarify that once parties request for reasons then it is good practice for the taxing master to respond and indicate that the reasons are as contained in the Ruling.

10. On the question of setting aside, I find that it would be premature to determine this matter at this stage as my findings on the issue would prejudice the hearing of the reference which is yet to be filed.

11. On the question of stay, I am guided by the principles set out in the case of Transporters Ltd. vs. Absalom Dova Lumbasi [2012] eKLR, thus:“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”

12. Having granted the Applicant leave to file an objection and reference it is only fair that the Reference be heard before execution issues. However, I am also alive to the rights of the Respondent to obtain the long awaited fees.

13. Having considered the foregoing, the application is partially allowed in the following terms;a.Leave is hereby granted to the Applicant to file an objection and a taxation reference against the ruling of the National Environment Tribunal delivered on 18th April 2023. b.Stay of execution is granted subject to deposit of Ksh 500,000 in court within 30 days.c.Costs are to abide the determination of the reference.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 7THDAY OF DECEMBER 2023. JUDY OMANGEJUDGEIn the presence of: -Ms Mbirwe for A.G.N Kamau for the ApplicantMs Darni holding brief for Mr. Kithi for RespondentSteve - Court Assistant