[2022] KEHC 15596 (KLR)

HMS Advocates LLP v Finance & another (Miscellaneous Application E1180 of 2020) [2022] KEHC 15596 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15596 (KLR)

Republic of Kenya

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

Commercial and Tax

Miscellaneous Application E1180 of 2020

DO Chepkwony, J

October 14, 2022

Between

HMS Advocates LLP

Advocate

and

Alena Finance

1st Applicant

Frank Hammere

2nd Applicant

Ruling

1. This matter is coming up for ruling in respect to the Applicant’s application dated 9th February 2022 expressed in in terms of Rules 11(2) and (4) of the Advocates Act and Section 3A of the Civil Procedure Act.

2. The application is couched in the following manner;a.That Clients/Applicants herein be granted leave to file reference against the decision of 27th Jul,y 2021 by Hon.S.A Opande, the Taxing Master.b.That upon leave being granted, the Chamber summons application dated 20th November, 2021 be deemed to have been properly filed.c.That cost of this application be provided for.

3. The application is grounded on the grounds on its face and the annexed Affidavit of Donald B. Kipkorir.

4. In a summary of their grounds, the Applicants state that:-a.the Taxing Master erred in principle in taxing the Advocate/Client Bill of costs dated 19th October, 2020 and the Taxing Master erred in law in assessing instructions fees as though it were filing a suit when the advocate’s brief was to make an application to reinstate the suit.b.the Applicants have been aggrieved by the said ruling and seeks leave to file a reference and the application has been made without unreasonable delay.

5. In objection to the application, the Respondent have filed a Replying Affidavit sworn by Salome Tanui on 24th April, 2022, wherein it is deposed that:-a.on 27th July, 2021, the Taxing Master delivered a ruling in respect of the subject advocate-client Bill of costs dated 19th October, 2020. The ruling was uploaded on the e-filing platform on 6th August, 2021 and parties could with due diligence access it.b.on 23rd November, 2021, the Advocate filed an application for adoption of the Certificate of Taxation as a Judgment and order of the court.c.the application was set down for directions on 26th November, 2021 and given a hearing sate for 3rd December, 2021 and upon being served with the application, the clients filed a reference application dated 26th November, 2021. d.the reference application was an afterthought and a reaction to the application for adoption of the Certificate of Taxation as a Judgment and the same was filed 4 months after the Taxing Master had published his ruling.e.at the time of filing the reference application, the Applicants had not sought for enlargement of time.f.the reference application was set down for hearing on 27th January, 2022 and the Respondent had served the Applicants with their response to the reference application.g.upon being served with Replying Affidavit, the Applicants filed the application dated 9th February, 2022 seeking enlargement of time but no reasonable explanation has been given for the inordinate delay in filing the reference application. The application dated 23rd November, 2021 having been filed out of time is dead on arrival.h.the Applicants’ application dated 9th February, 2022 is therefore incompetent as it is overtaken by events and is an abuse of the court process and it should be dismissed with courts.

6. On 25th April, 2022, the court directed that the application dated 9th February, 2022 be canvassed by way of written submissions. The Applicant’s submissions are dated 5th May, 2022 while the Respondent’s submissions are dated 29th May, 2022.

Analysis and Determination 7. I have considered the Applicants’ application dated 9th February, 2022, seeking for leave to file a reference, the Affidavit in support and opposition thereof together with the written submissions filed by both parties and the several authorities cited in support of the application. I find the sole issue for determination before this Honourable Court being whether or not the Applicants have made out a case to enlarge time to file the reference.

8. In determining the question of leave to enlarge time, this court is guided by the provisions of Paragraph 11 of the Advocates Remuneration Order which 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.

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. ............

4. The High court shall have power in its discretion by order to enlarge the time fixed by paragraph (1) or subparagraph (2), may with leave of the Judge but not otherwise, appeal to the Court of appeal.

9. The law obligates any party wishing to object to Taxing Master’s decision to do so in writing within fourteen days after delivery of the Taxing Officer’s decision and request for reasons on Taxation of specified items in the Bill of Costs that are objected to, and upon receipt thereof the Applicant can make an application by way of a reference vide a Chambers Summons application to a Judge setting out the grounds of objection to the Taxation.

10. It is however important to note that leave to enlarge time is not an automatic right of a party but a discretionary remedy of a Court which is only exercised for a deserving party based on the material placed before the Court.

11. On the question of leave to enlarge time, I am guided by the authority of Paul Wanjohi Mathenge –vs- Duncan Gichane Mathenge[2013] eKLR, where the Court of Appeal while referring to other authoritiesobserved;-“The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the Respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi V Charles Gichina Mwangi – Civil Application No. Nai 26 of 2004, this Court held; -“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi v Kenya Airways Ltd [2003] KLR 486 in which this Court stated;-Over the years, the Court has, of course set out guidelines on what a single judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi – Civil Application No Nai 255 of 1997(unreported), the Court expressed itself thus; -“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of the delay; secondly, the reasons for delay; thirdly(possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent if the application is granted.”

12. Upon perusal of the Court record, I note that the impugned decision was delivered on 27th July, 2021 while the application to enlarge time to file a reference was filed on 9th February, 2022. The delay in filing the said application is about seven (7) months from the date when the decision was uploaded on the e-filing portal.

13. The Applicants have not been able to satisfactorily explain the delay in filing the current application before court. It is also note-worthy that the application to enlarge time to file a reference was only prompted upon service of the application by the Respondent seeking to have the Certificate of Taxation issued being adopted as an order of this court.

14. Thus, it is clear from the observations noted by the court that the application before court is an afterthought only meant to deny the Respondent from enjoying the fruits of the Judgment.

15. In dealing with the question of delay the Court in KTK Advocates –vs- Nyambeni Coffee Estates Ltd & 2 Others, Majanja J noted that;“The delay to file this application in relation to the time decision was made and the time the request for reasons was made has been inordinate and is not explained. Moreover, this application was made in response to the Advocates application for Judgment under Section 52 of the Advocates Act. Judgment has already been entered against the client.”

16. This is the exact scenario in the instant case and it is my view that the Applicants have not satisfied the grounds upon which this Court can exercise its discretion to enlarge time so they can file the application for reference as envisioned under Paragraph 11 of the Advocates Remuneration Order.

17. I therefore make a finding that the Applicants’ application dated 9th February, 2022 lacks merit and is dismissed with costs to the Respondents.It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS…14TH…. DAY OF …OCTOBER…, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Arunga counsel holding brief for Mr. Madoto counsel for ApplicantM/S Onyango counsel holding brief for Mr. Kipkorir counsel for ClientsCourt Assistant - Sakina