[2024] KEELC 6484 (KLR)

Eno & Associates Advocates v Nairobi City County (Miscellaneous Application E081 of 2023) [2024] KEELC 6484 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6484 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Miscellaneous Application E081 of 2023

JO Mboya, J

October 3, 2024

Between

Eno & Associates Advocates

Applicant

and

Nairobi City County

Respondent

Ruling

1. The Ruling herein relates to two [2] Applications, namely, the Application dated 5th April 2024 filed by and on behalf of the Eno & Associates Advocates [hereinafter Advocate/Applicant] and the Application dated 27th June 2024; the latter which is filed by the Nairobi City County [hereinafter Client/Respondent].

2. Owing to the fact that the Ruling relates to two [2] Applications, it suffices to highlight the reliefs sought at the foot of each Application. In this regard, the Application dated 5th April 2024 has sought for the following reliefs:i.The Certificate of Taxation dated 28th February 2024 for the sum of Kshs. 79,994,667/- only be adopted as judgement and decree of the court.ii.That the said sum of Kshs. 79,994,667 do attract interest thereon at the rate of 14% per annum effective 15th June 2023 until payment in full.iii.The costs of this application be awarded to the applicant.

3. The instant Application is premised on various grounds, which have been highlighted in the body thereof. Furthermore, the Application is supported by the Affidavit of Edward N. Omoiti sworn on even date and to which the deponent has annexed two documents [read annexures].

4. The Application dated 27th June 2024 seeks the following reliefs:i.……………………………………………………………………Spentii.The Honourable Court be pleased to enlarge time for the Applicant to file a reference against the decision of the taxing master which was delivered on the 23rd February 2024. iii.There be a stay of execution of the Certificate of Taxation dated 28th February 2024 and the consequential judgement and decree pending the hearing and determination of the reference.iv.The reference application annexed hereto be deemed as duly filed and served upon payment of the requisite fees.v.Costs of the application be in the cause.

5. The subject Application by the Client/Respondent is premised on the various grounds which have been highlighted in the body thereof. In addition, the Application is supported by the Affidavit of Lorna Chelangat Kiplai,[ Advocate] sworn on even date.

6. The subject matter came up for direction on 15th July 2024 whereupon it transpired that the parties herein had each filed an application. In this regard, directions were taken that the two [2] Applications be heard and canvassed simultaneously. Furthermore, it was also agreed that the two [2] Applications be canvassed by way of written submissions.

7. Flowing form the directions of the court, the Advocate/Applicant proceed to and filed written submissions dated 1st August 2024; and whereas the Client/Respondent filed written submissions dated 5th August 2024.

8. For coherence, the two [2] sets of written submissions form part of the record of the court.

Parties’ Submissions: a. Advocate/Applicant’s Submissions 9. The Advocate/Applicant herein filed written submissions dated 1st August 2024 and wherein same [Advocate/Applicant] adopted the grounds at the foot of the Application and reiterated the averments contained in the body of the Supporting Affidavit. Furthermore, the Advocate/Applicant thereafter highlighted and canvassed three [3] salient issues for consideration by the court.

10. Firstly, the Advocate/Applicant contended that the Certificate of Taxation which underpins the Application dated 5th April 2024 has neither been challenged, varied, rescinded and/or set aside. In this regard, it was contended that the Certificate of Taxation has thus become final and hence deserving of being adopted as a judgement of the court.

11. To this end, the advocate contended that the Application seeking for entry of judgement in terms of the Certificate of Taxation complies with and/or satisfies the requisite ingredients highlighted at the foot of Section 51(2) of the Advocates Act Chapter 16 Laws of Kenya.

12. In support of the limb of the Application seeking to have judgement entered in terms of the Certificate of Taxation the Advocate has cited and referenced Musyoka & Wambua Advocates v Rustam Hira Advocate [2006] eKLR and Lubullelah & Advocates v N.K Brothers Limited [2014] eKLR.

13. Secondly, the Advocate/Applicant has submitted that the Application by the Client/Respondent and in respect of which the Client/Respondent seeks for extension of time is not merited, insofar as the client has neither accounted for nor explained the reasons for the delay in filing (sic) the reference before the court.

14. Furthermore, the Advocate/Applicant has submitted that having failed to account for and/or give explanation for the delay attendant to the filing of the reference, the request for extension of time has been made and mounted in vacuum. In this regard, the Advocate/Applicant has posited that the Honourable Court cannot thus be invited to exercise discretion in vacuum.

15. The Advocate/Applicant has submitted that even though the Client/Respondent herein has sought for enlargement of time within which to file a reference, same [Client/Respondent] has however not sought for extension of time within which to file and serve a Notice of Objection to Taxation. In this regard, it has been contended that the proposed reference shall be an act in futility.

16. Finally, the Advocate/Applicant has submitted that the Client/Respondent herein has neither established nor demonstrated the existence of substantial loss which is a critical ingredient underpinning an application for stay of execution. In this regard, it has been posited that in the absence of the evidence of substantial loss, the limb of the Application seeking for stay of execution pending the hearing of the reference is not merited.

17. In support of the foregoing submissions, the Advocate/Applicant has cited and referenced various decisions including Visram Ravji Halai v Thornton & Turpin [1990] eKLR, Miller & Co. Advocates v China Road and Bridge Corporation [2021] KEHC 408, Suleiman v Amboseli Resort [2004] 2KLR and Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Ltd [2014] eKLR, respectively.

18. Premised on the foregoing, the Advocate/Applicant has implored the court to find and hold that the Application dated 5th April 2024 and which seeks for entry of judgement is meritorious, whereas the Application seeking for enlargement of time is devoid of merits.

b. Client/Respondent’s Submissions 19. The Client/Respondent herein filed written submissions dated 5th August 2024 and in respect of which same [Client/Respondent] adopted the grounds contained at the foot of the Application seeking for enlargement of time and thereafter reiterated the contents of the Supporting Affidavit. In addition, the Client/Respondent herein thereafter raised and highlighted three [3] salient issues for consideration by the court.

20. First and foremost, the Client/Respondent herein contended that though same was duly represented before the Taxing Master during the delivery of the Ruling, there was a delay in issuance of instructions to file/lodge a reference. In this regard, it was posited that because of the delay in communicating the instructions, the reference was not filed within the prescribed timelines.

21. Be that as it may, the Client/Respondent contends that the learned Taxing Master erred in taxing the Advocate-Client Bill of Costs without taking into account the opposition by the Client/Respondent.

22. Furthermore, the Client/Respondent herein has contended that same is therefore deserving of discretion of the court to enlarge time and thereafter allow the Client/Respondent to file and serve a reference.

23. In support of the contention that the Client/Respondent herein has met and established the threshold to warrant the grant of the reliefs sought, the Client/Respondent has cited and referenced the decision in the case of Nicholas Kiptoo arap Korir Salat v I.E.B.C & 7 Others [2014] eKLR.

24. Secondly, the Client/Respondent herein has submitted that same has placed before the court sufficient and credible material to demonstrate that an order of stay of execution pending the hearing and determination of the reference ought to be granted. In this regard, it has been contended on behalf of the Client/Respondent that there is a likelihood of substantial loss arising, unless the orders of stay are granted.

25. To buttress the submissions that the Client/Respondent has demonstrated the need to grant an order of stay of execution, the decision in the case of County Government of Tana River v Miller and Co. Advocates [2012] eKLR has been cited and referenced.

26. Thirdly, the Client/Respondent has submitted that the Application by the Advocate/Applicant herein is not merited and hence same ought not to be allowed. In any event, it has been contended that the Taxing Master disregarded the Response which had been filed by and on behalf of the Client/Respondent. In this respect, the Client/Respondent has posited that the Certificate of Taxation is replete with errors and thus ought not to be adopted as a judgement.

27. In support of the submissions that the Certificate of Taxation is wrought and replete with errors and thus not deserving of being adopted, the Client/Respondent has cited and referenced the holding in the cases of Kipkorir Toto & Kihara Advocates v Deposit Protection Fund Board [2005] eKLR, First American Bank of Kenya v Shah & Others [2002] EA 64 and Joreth Limited v Kigano & Associates [2002] 1 EA 92, respectively.

28. Arising from the foregoing, the Client/Respondent has thus submitted that the Application dated 27th June 2024 is meritorious and thus ought to be allowed. For coherence, the Client/Respondent has invited the court to proceed and allow the Application and to essentially enlarge time for filing of the reference.

29. On the other hand, the Client/Respondent has posited that the Application by the Advocate/Applicant and which seeks for entry of judgement in terms of the Certificate of Taxation is devoid of merit and thus same [Application] ought to be dismissed.

Issues for Determination : 30. Having reviewed the two [2] Applications beforehand, the responses thereto and the written submissions filed by the parties, the following issues do emerge [crystalise] and are thus worthy of determination.i.Whether the Client/Respondent has established and/or demonstrated the requisite basis to warrant the enlargement of time within which to file a reference against the Certificate of Taxation.ii.Whether the Client/Respondent has demonstrated a basis to warrant the grant of an order of stay of execution pending the hearing of (sic) the reference.iii.Whether the Advocate/Applicant has met the statutory threshold in terms of Section 51(2) of the Advocates Act to warrant entry of judgement in terms of the Certificate of Taxation.

Analysis and Determination i. Whether the Client/Respondent has established and/or demonstrated the requisite basis to warrant the enlargement of time within which to file a reference against the Certificate of Taxation. 31. The Client/Respondent herein has sought for enlargement of time within which to file and serve a reference against the Certificate of Taxation issued on 28th February 2024. In particular, the Client/Respondent has contended that even though same was duly served with the Bill of Costs and thereafter same proceeded to and filed an opposition thereto, the Taxing Master proceeded to and taxed the Advocate-Client Bill without due regard to the Response filed by the Client/Respondent.

32. Additionally, the Client/Respondent has posited that the Ruling pertaining to and in respect of the Advocate-Client Bill of Costs was delivered in the presence of its [Client/Respondent] advocate.

33. To this end, it suffices to reproduce the preamble of the Client/Respondent’s submissions. Same states as hereunder:“Subsequently, the matter was fixed for Ruling on 23rd February 2024 in the presence of both advocates. Upon the Ruling being delivered the Taxing Master noted that the Bill was taxed as drawn as the Respondent had not filed their response.”

34. It is evident and apparent that the Ruling in respect of the Advocate-Client Bill of Costs was delivered in the presence of the advocate for the Client/Respondent. In this regard, there is no gainsaying that the advocate for the Client/Respondent was therefore knowledgeable of the terms of the Ruling underpinning the Certificate of Taxation.

35. To the extent that the advocate for the Client/Respondent was privy to and knowledgeable of the Ruling on taxation, it was incumbent upon the advocate for the Client/Respondent to take suitable steps towards challenging the Ruling and the consequential Certificate of Taxation.

36. For good measure, it was the obligation of the advocate for the Client/Respondent to inter alia communicate the terms of the Ruling to the Client/Respondent and also to file/lodge the Notice of Objection to Taxation, where appropriate. [ See the provisions of Rule 11[1] of the Advocates Remuneration Order].

37. Nevertheless, even though the advocate for the Client/Respondent was knowledgeable of the delivery and the terms of the Ruling, same [advocate for the Client/Respondent] failed to take appropriate steps towards filing a Notice of Objection to Taxation, which is an elementary process toward challenging the Certificate of Taxation.

38. Having failed to file the Notice of Objection to Taxation and by extension the Reference within the prescribed timelines, the Client/Respondent is now before the court seeking for enlargement of time, within which to file a reference.

39. Suffice it to point out and reiterate that the court is seized of the requisite jurisdiction and discretion to enlarge time for the filing of a notice of objection to taxation as well as a reference, where appropriate.

40. However, there is no gainsaying that prior to and before a court of law can grant a request for extension/enlargement of time, like the one sought beforehand, it behoves the applicant to account for the delay and to avail plausible explanation attendant to the delay in question.

41. To start with, any applicant, the Client/Respondent not excepted, desirous to partake of equitable discretion of the court must document the extent of delay [period of delay]. Thereafter, the applicant is called upon to offer blow by blow explanation for the duration of delay. Furthermore, it suffices to posit that the explanation must not only be candid but same must also be reasonable and justifiable in the circumstances.

42. At any rate, it is common knowledge that the exercise of discretion towards and in respect of extension of time can only be done in favour of an applicant who has justified the delay. Suffice it to underscore that whosoever seeks condonation must avail plausible and cogent reasons to warrant such condonation.

43. To this end, it is imperative to cite and reference the holding of the Court of Appeal in the case of Njoroge v Kimani (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) where the court stated thus:“12. In order to exercise its discretion whether or not to grant condonation, the court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. An unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success. Condonation cannot be had for the mere asking. An applicant is required to make out a case entitling him to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.13. Equally important is that an application for condonation must be filed without delay and/or as soon as an applicant becomes aware of the need to do so. Thus, where the applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the court may take a dim view, absent a proper and satisfactory explanation for the further delays.”

44. Furthermore, the need to account for the delay and avail credible reasons prior to benefiting from the exercise of discretion was also underscored by the Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 others (Civil Application 3 of 2016) [2017] KESC 16 (KLR) where the court stated and held thus:“23. It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court.”

45. Bearing in mind the ratio decidendi highlighted in the decisions cited in the preceding paragraphs, it is now appropriate to revert to the instant matter and to discern whether the Client/Respondent has indeed met/satisfied the threshold to warrant the enlargement of time.

46. Firstly, there is no gainsaying that despite being knowledgeable of the delivery of the Ruling underpinning the Certificate of Taxation, the Client/Respondent herein did not take any steps towards protecting her interests.

47. Secondly, it is also important to point out that even though the advocate for the Client/Respondent contends that there was a delay in receiving instructions from the Client/Respondent, no evidence has been placed before the court to demonstrate that there was correspondence between the advocate and the Client/Respondent.

48. Thirdly, the Client/Respondent herein has neither tendered nor produced any evidence to document the difficulty, if any, that same [Client/Respondent] encountered in giving instructions for purposes of (sic) filing a Notice of Objection to Taxation and by extension the Reference.

49. What comes out clearly is that there was/is an apparent lethargy and/or want of diligence on the part of the Client/Respondent. In this regard, the want of diligence and/or slovenliness cannot now be deployed by the Client/Respondent with a view to partaking of equitable discretion of the court.

50. To my mind, if the court were to dignify the Client/Respondent with exercise of discretion, it shall be tantamount to countenancing slovenliness and rewarding dilatoriness. Such an attempt would run contrary to the provisions of Section 1B as read together with Article 159 (2)(b) of the Constitution 2010.

51. Further and at any rate, there is no gainsaying that every litigant, the Client/Respondent not excepted, is called upon to exhibit and display due diligence in the course of litigation.

52. In this respect, it is imperative to cite and reference the decision of the Court of Appeal in the case of Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] eKLR where the court reiterated the need to exhibit due diligence.

53. For coherence, the court stated thus:““Justice shall not be delayed” is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure.”

54. In a nutshell, my answer to issue number one is to the effect that the Client/Respondent who is seeking for enlargement of time within which to file the reference has neither accounted for the delay nor given any plausible reasons to warrant exercise of discretion in its favour.

55. In addition, it suffices to posit that the exercise of discretion of the court is neither anchored nor founded on sympathy. Furthermore, discretion is not also founded on empathy.

56. Simply put, one does not partake of discretion for the mere asking.

Issue Number Two ii. Whether the Client/Respondent has demonstrated a basis to warrant the grant of an order of stay of execution pending the hearing of (sic) the reference. 57. Other than the limb of the Application by the Client/Respondent wherein same [Client/Respondent] seeks the enlargement of time, the Client/Respondent herein has also sought an order of stay of execution pending the hearing of the reference.

58. Nevertheless, it is not lost on this court that even though the Client/Respondent is seeking for an order of stay of execution pending the hearing of the reference, no reference has since been filed.

59. Furthermore, it is also worth stating that even though the Client/Respondent is alluding to a reference, same [Client/Respondent] is aware that leave to file a reference has not been granted yet. For good measure, it is common knowledge that the filing of an application for enlargement of time is not synonymous with an order for enlargement of time.

60. Be that as it may, what is crystal clear is that the application for stay of execution has been sought for prior to and before the filing of a reference.

61. The question that does arise and which the court must grapple with relates to whether an order of stay can be issued in the absence of a reference, or whether such a situation would be tantamount to placing the wagon before the horse.

62. In my humble view, just like an order of stay of execution cannot issue prior to and before the filing of an appeal [Notice of Appeal] no stay can issue in the absence of a reference.

63. Insofar as no reference has been filed in respect of the instant matter, it is difficult to fathom and/or comprehend on what basis the Client/Respondent wishes to procure an order of stay. Quite clearly, an order of stay cannot issue in anticipation and better still in vacuum.

64. In the absence of a reference, the Client/Respondent herein cannot be heard to say that same has established and/or met the requisite conditions in terms of Order 42 Rule 6 of the Civil Procedure Rules which provisions apply mutatis mutandis to the grant of stay pending a reference.

65. To this end, it is apposite to take cognisance of the holding in the case of Miller & Company Advocates v China Roads & Bridge Corporation [2021] KEHC 408 (KLR) where the court stated and held as hereunder:“15. The conditions to be met in an application for stay of execution pending hearing and determination of a reference to a judge from taxation of costs are similar to the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. This is to say that a court will in granting the orders be guided by presence of substantial loss and the provision of suitable security for due performance of the terms of the decree or order that may eventually be binding upon the applicant. The court will also consider if the application has been filed without unreasonable delay.”

Issue Number Three iii. Whether the Advocate/Applicant has met the statutory threshold in terms of Section 51(2) of the Advocates Act to warrant entry of judgement in terms of the Certificate of Taxation. 66. The Advocate/Applicant on its part filed the Application dated 5th April 2024 and wherein same [Advocate/Applicant] seeks the entry of judgement in terms of the Certificate of Taxation.

67. It suffices to point out that the Certificate of Taxation which was issued to and in favour of the Advocate/Applicant has neither been challenged, rescinded and/or set aside. In this regard, the Certificate of Taxation remains in place and certifies the quantum of costs due and payable to the Advocate/Applicant.

68. On the other hand, there is no gainsaying that the Client/Respondent herein has neither disputed retainership nor contested the fact that the Advocate/Applicant provided legal services in its favour.

69. To the extent that the Certificate of Taxation has neither been varied nor rescinded; and coupled with the fact that there is no dispute as pertains to retainer, it is evident that the Advocate/Applicant has satisfied the ingredients at the foot of Section 51(2) of the Advocates Act Chapter 16 Laws of Kenya.

70. Given the significance of Section 51(2) supra to the Application beforehand, it suffices to reproduce same. In this regard, the provisions are reproduced as hereunder:“(2)The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

71. Without belabouring the point, I come to the conclusion that the Advocate/Applicant herein has duly satisfied the ingredients and thus the limb of the Application seeking the entry of judgement in terms of the Certificate of Taxation is meritorious.

72. Further and in addition, the Advocate/Applicant has also sought for interest at the rate of 14% per annum on the amount reflected at the foot of the Certificate of Taxation.

73. Suffice it to point out that the award of interest on account of advocate-client costs is regulated by the provisions of Rule 7 of the Advocates Remuneration Order. Same stipulate as hereunder:“An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”

74. Arising from the foregoing, it is therefore my finding and holding that the claim by the Advocate/Applicant herein for interest is well grounded. At any rate, the rate of Interest is well provided vide the named provisions of the law.

Final Disposition: 75. Flowing from the analysis highlighted in the body of the Ruling, it is crystal clear that the Client/Respondent has neither met nor established the requisite threshold to warrant the exercise of discretion in its favour. In this regard, the Application dated 27th June 2024, [which essentially sought for enlargement of time] is devoid of merits.

76. On the other hand, it suffices to state that the Advocate/Applicant has met and satisfied the ingredients espoused vide the provisions of Section 51 (2) of the Advocates Act, Chapter 16, Laws of Kenya; and hence the Application for entry of judgement is meritorious.

77. In the premises, the final orders of the court are as hereunder:i.The Application dated 27th June 2024 be and is hereby dismissed with costs.ii.The Application dated 5th April 2024 be and is hereby allowed with costs.iii.The Certificate of Taxation dated 28th February 2024 be and is hereby adopted as the judgement of the court.iv.The Advocate/Applicant shall be entitled to interest in accordance with Rule 7 of the Advocates Remuneration Order 2009 w.e.f. 15th June 2023.

78. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF OCTOBER 2024. OGUTTU MBOYAJUDGE.In the presence ofBenson – Court assistantMs. Kemunto for the Advocate/ApplicantMs. Kiplai for the Client/Respondent