[2022] KEHC 1402 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

MISCELLANEOUS APPLICATION NO.4 OF 2020

IN THE MATTER OF TAXATION OF BILL OF COSTS BETWEEN ADVOCATE AND CLIENT

BETWEEN

GORI, OMBONGI & COMPANY ADVOCATES......APPLICANT

AND

MARY WANGECHI KAMARA ...................RESPONDENT

RULING

1. The applicant herein is a firm of advocates. They have filed an application dated 18th January 2021 seeking for orders:

1. Spent

2. That the applicant be granted leave to file a reference against the taxation ruling delivered on 16th December 2020 out of time.

3. That the intended application and annexed reference be deemed to have been duly filed within the stipulated time.

4. That the costs of the application be in the cause.

2. The application is based on the grounds:

1. That the intended reference raises triable issues.

2. That the delay in filing was not deliberate but was due to inadvertence caused by pressure of work and breakdown of communication on the part of counsel for the applicant.

3. That there is no prejudice likely to be suffered by the respondents if the orders sought are not granted.

3. The application is supported by the affidavit of Ombongi O. Douglas deposed on 18th January 2021 and his further supplementary affidavit sworn on the 30th June 2021.

4. The background to the application is that the applicant was engaged by the respondent to represent them in Nyeri Succession Cause No. 533 of 2012 which they did between the years 2017 and 4th February 2020 when the respondent engaged another firm of advocates. The applicant then raised a bill of costs dated 26th June 2020. The same was opposed by the respondent. The bill was placed for taxation before the Deputy Registrar of this court who taxed it and delivered a ruling on the 16th December 2020. The law required the applicant if not satisfied with the taxation to file a reference with the High Court within 14 days. They did not do so. They thereafter filed the instant application on the 11th March 2020.

5. The application was opposed by the respondent through the replying affidavit of the respondent sworn on the 4th June 2021 where she deposes that the applicant admits that he learnt of the delivery of the ruling in time before the time for filing the reference expired but failed to do so. That the application and the supporting affidavit are dated 18th January 2021 yet they were not filed until 11th March 2021. Therefore, that the delay has not been explained. That the applicant has not attached a copy of the draft reference for the court to consider if it raises triable issues. That the respondent stands to suffer prejudice if the orders sought are granted as they will have the effect of prolonging the litigation.

6. The advocates for the respondent, Judy Thongori & Co. Advocates,filed submissions in respect to the matter. The advocates for the respondent Gori, Ombongi & Co. Advocates, relied on their depositions.

7. The advocates for the respondent submitted that the delay in filing the reference within the stipulated time is inexcusable. That the applicant admits in his supporting affidavit that he was appraised of the outcome of the ruling by fellow counsel who held his brief on the same day the ruling was delivered. That counsel then would have filed the reference before the lapse of the stipulated time.

8. It was submitted that the applicant has not followed the proper steps in filing a reference in that they have not given any notice in writingto the taxing master on the items in the bill of costs objected to nor have they filed the proposed reference for this court`s consideration as to whether the grounds raised are substantial with a probability of success. Further that the law directs that an application such as the one before court ought to be by way of chamber summons and not a notice of motion as directed. Counselreferred to the provisions for objection to decision on taxation as provided under paragraph 11 of the Advocates (Remuneration) Order.

9. Counsel cited the case of In the County Executive of Kisumu v County Government of Kisumu & Others (2017) eKLR where the court set down the factors to be considered in an application for extension of time.

Analysis and Determination–

10. The principles to be considered in determining whether or not to grant an application for enlargement of time are as was set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission and 7 Others [2013] eKLR where it was stated that:-

“(i) 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;

(ii) A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court;

(iii) Whether the court should exercise discretion to extend time is a consideration to be made on a case to case basis;

(iv) Where there is a reasonable cause for the delay. The delay should be expressed to the satisfaction of the court;

(v) Whether there will be any prejudice suffered by the respondents, if extension is granted;

(vi) Whether the application has been brought without undue delay.”

See alsoTheCounty Executive of Kisumu V County Government of Kisumu & 8 Others (2017) eKLR where the Supreme Court re-stated the same principles.

11. In Aviation & Allied Workers Union (K) v KQ &3 Others (2015) eKLR the Court of Appeal made it clear that extension of time is not a right; that there must be prove why a party seeks such extension; that there should be no extension where the respondent will be adversely affected; and that the application must have been brought timeously.

12. I have considered the application, the grounds in opposition thereto, the submissions tendered and the relevant law. The issues for determination are:

(1) Whether the delay has been satisfactorily explained.

(2) Whether the intended reference has merits.

(3) Whether the respondent will suffer any prejudice if the prayers sought are granted.

13. The ruling on the bill of costs was delivered on the 16th December 2020. Paragraph 11 (2) of the Advocates (Remuneration) Order gives an aggrieved party 14 days in which to file a reference to the High Court after reasons for the decision are communicated. Order 49 rule 3A of the Civil Procedure Rules excludes the period between 21st December of any year and 6th January of the coming year in computation of time for filing any pleading. When those days are excluded the applicant had up to the 15th January 2021 or thereabouts to file the reference. Mr. Ombongi says that there was a colleague who was holding his brief when the ruling was delivered on the 16th December 2020. However, that he came to learn of the decision on the 18thJanuary 2021 which was after the prescribed period had expired. Counsel further says that their reference intends to challenge the decision of the Deputy Registrar on his finding in item 1 and his interpretation of clause 62(A) of the Advocates (Remuneration) Order that the said section was binding in the circumstances of their case.

14. Mr. Ombongi did not disclose the name of his lawyer colleague who held his brief on the day the ruling was delivered. The said colleaguedid not swear an affidavit to state the day he communicated the decision to Mr. Ombongi. There was no explanation why Mr. Ombongi`s colleague did not come out to support the allegations. It can only mean that his/her evidence was adverse to the applicant`s case or that there was no such a thing. Mr. Ombongi has thereby not proved that he learnt of the court ruling on 18th January 2021.

15. Even if the court were to accept Mr. Ombongi`s explanation that he learnt of the decision on the 18th January 2021, he did not file the application with the urgency that it required as the statutory period for filing it had lapsed. It is evident that the advocate drafted the documents on the 18th January 2021 but never had them filed until the 11th March 2021, a period of 7 weeks. Counsel has not explained why it took him 7 weeks to file the application from 18th January 2021 when he claims to have learnt of the decision of the court. I find that the delay of 7 weeks has not been explained.

16. The court has the discretion on whether or not to extend time to file a reference outside the stipulated time. The discretion must however be exercised judicially. The test to be applied on the question of delay is similar to that employed by courts in considering whether to reinstate a suit that has been dismissed for want of prosecution. Delay alone is not sufficient reason to deny the application if justice can still be done to the parties. In Ivita vs Kyumba(1984)KLR the court in considering an application for dismissal of suit for want of prosecution held that:

“The test applied by the courts in an Application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged if the court is satisfied with the Plaintiff‘s excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the court.”

17. In this matter the delay was close to three months. In my view the delay was not prolonged if justice could still be done to the parties.

18. However, there is the extra issue that there was no draft reference annexed to the application. The issue was raised by the respondent in her replying affidavit sworn on 4th June 2021. Mr. Ombongi thereafter filed a supplementary affidavit sworn on the 30th June 2021 and never challenged the contention by the respondent that there was no draft reference annexed to the application. Failure to respond to the issue was a confirmation that there was indeed no draft reference annexed to the application. There is no explanation why a draft reference was not filed.

19. The purpose of filing a draft document in such an application is for the court to interrogate the case for the applicant and determine whether there were triableissues being raised. I wish to borrow a leaf from the requirement in an application to set aside an exparte judgment that a party making the application must file a draft intended defence for the court to consider whether the intended defence has merit. In Harun Rashid Khator suing as the representative of Rashid Khator (Deceased) v Sudi Hamisi & 11 Others[2014] eKLR Angote J. held that failure to annex a draft defence on an application to set aside a regular ex-parte judgment is fatal to such an application. In the same vein, I would say that failure to annex an intended draft reference is fatal to an application for extension of time. In this respect the ELC court, Mbogo J. In Muli Musembi & Another v Ruth Katunga Isika (2018) eKLR dismissed an application for extension of time to file a reference on the grounds that there was no draft reference annexed to the application. The judge held that:

…. the main prayer herein is the one for the court to enlarge time and to grant leave to the Applicant to file a reference against the decision of the taxing master. No draft copy of the reference was annexed to the supporting affidavit. Had this been done, the court would have been in position to see the reasons or items on the taxed costs that the Applicants are opposed to. As the matter stands now, the court is left to guess on the issues that the Applicants intend to raise in the proposed reference.

20. In the instant application, I would similarly hold that no grounds have been advanced from which the court can determine whether the reference raises triable issues. The applicant has not demonstrated that the intended reference has merit.

21. One other thing I may comment on is whether the application should have been brought by way of chamber summons or by way of notice of motion. Nowadays, it is immaterial whether an application is brought by either way. This was explained by Emukule J. (as he then was) in the case Susan K. Baur v Shashikant Shamji Shah & Another [2011] eKLR where he stated that:

“The difference between a Summons in Chambers and a Notice of Motion is today very much blurred. In the olden days, summons in chambers was heard in chambers unless the court adjourned it for good reason to be heard in open court. Similarly, Motions were heard in open court unless the court as stated in Order L, rule 1 directed that it be heard in chambers. Today, both Chamber Summons and Motions may and are heard in chambers, and in open court. So that christening an application a Chamber Summons or a Notice of Motion when the rules provide otherwise does not go to the root or basis of the claim, and is merely a matter of form not substance. It does not render the application fatally defective.”

22. In conclusion, the applicant has not explained the delay to the satisfaction of the court. And even if the court wanted to do justice to the parties despite the delay, the applicant has not demonstrated that the intended reference has merit. The upshot is that the application is dismissed with costs to the respondent.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NYERI THIS 11TH DAY OF MARCH 2022.

J. N. NJAGI

JUDGE