[2023] KEELC 247 (KLR)

Hunja v Elias & another (Miscellaneous Application E010 of 2022) [2023] KEELC 247 (KLR) (26 January 2023) (Ruling)

Neutral citation: [2023] KEELC 247 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Miscellaneous Application E010 of 2022

LN Gacheru, J

January 26, 2023

Between

Johnson Kamau Hunja

Plaintiff

and

Jackson Warui Elias

1st Defendant

Humphery Kangaru

2nd Defendant

(Being a reference against the decision of the Taxing Master, the Honorable S. K Nyaga in Murang’a ELC Number 13 of 2020)

Ruling

1. Through a Chamber Summons Application dated April 13, 2022, the Defendants moved this Court for Orders;1. That the Honorable Court be pleased to vacate and set aside in its entirety the ruling of the Honorable SK Nyaga, Deputy Registrar, dated and delivered on the March 28, 2022. 2.That the Court be pleased to refer the 1st and 2nd Defendants’/ Applicants’ Bill of Costs dated February 4, 2022, for fresh taxation before a different Taxing Master with suitable directions.3. That in the alternative to (2) above, this Honorable Court be pleased to exercise its discretion and do tax the Bill of Costs dated February 4, 2022, itself.4. That the costs of this application be provided for.

2. The Application is premised on fourteen grounds set out on the face of the said Application and the Supporting Affidavit of Patrick Maguta Kimemia. It is the Applicants’ case that the taxing master in her ruling of March 28, 2022, taxed off their Bill of Costs of kshs 189,205/= and awarded kshs 3,360/= an amount which he argues is manifestly low. The Applicants’ contend that the taxing master misdirected herself by taxing off the respective sums in items No 1, 2, 4-8, & 11-13, thus contravening the requisite provisions of the Advocates Remuneration Amendment Order, 2014. Thus, that the taxing master misdirected herself on points of law and the ruling should be set aside.

3. In opposing the application, the Plaintiff/Respondent through his advocate filed a Replying Affidavit sworn on the July 8, 2022. It is the Plaintiff’s contention that the application is incompetent and void ab initio, having been filed way beyond the stipulated time. That there having been duplication of files, the Plaintiff/Respondent sought to have one file closed with no orders as to costs. He deponed that items Nos 1,2,4-8, 10 & 11, were not in the Court file and the documents attached herein were obtained from the lower Court file. As a result thereof, there is no evidence that the Defendants/Applicants paid filing fees in both files. On item No 9, he deponed that the date only exists in the lower Court file. In the end, he averred that the Defendants/Applicants are not entitled to items No 3, 12 & 13, as they will have it taxed in the lower Court should they succeed.

4. The application was canvassed by way of written submissions. The Defendants/Applicants filed their submissions on the August 1, 2022, giving a brief history of facts that gave rise to the Bill of Costs. It was submitted that the Costs were inordinately too low and the Applicants relied on the case of Republic vs Ministry of Agriculture & 2 Others Ex Parte Muchiri W’njuguna & 6 Others, where the Court held that the discretion of a taxing officer cannot be interfered with unless the award is so low or so high. It was the Applicants further submissions that they ought not to be penalized for the missing court file documents and urged this Court to be guided by the case ofVise vs Gubb (1981) 3(SA) 753(C) 754H – 755C, where the Court elaborated circumstances when a Court can interfere with a taxing master’s discretion including where it is evident that the taxing master was clearly wrong. The Applicants also relied on some South African cases to persuade this Court to find that the taxing master misdirected herself on the law and principles of taxation.

5. The Plaintiff/Respondent filed his submissions on the September 19, 2022, and maintained that the application was filed 77 days beyond the required statutory period. In persuading this Court that the application ought to be declined, the Plaintiff/Respondent invited this Court to the holding of the Court in Twiga Motors Limited vs Hon. Dalmas Otieno Onyango(2015) eKLR, where the Court held that failure to adhere to the timelines in Rule 11 of the Advocates Remuneration Order, renders an application incompetent. Further, he submitted that the withdrawal of the suit was precipitated by duplicity of suits and affirmed that the suit is still pending in Court.

6. By a ruling of March 28, 2022, the taxing master in considering the Applicants’ Bill of Costs dated February 4, 2022, awarded kshs 3,360/= against kshs 189,205/= sought. The Defendants/Applicants being dissatisfied, filed the instant Application.

7. It appears from the patchy documents that the Plaintiff/Respondent filed a suit against the Defendants/Applicants in Murang’a ELC No 13 of 2020, and the Defendants/Applicants Entered Appearance and filed a Defence thereto. Further, this Court notes that the Plaintiff/Respondent withdrew the foregoing suit and which withdrawal culminated to the filing of the Bill of Costs. This Court draws from the parties hereto that there exists a similar suit between the parties herein in the lower Court. This Court has not had a chance to peruse the impugned Bill of Costs. The Plaintiff/Respondent objected to the application on the premise that the same was filed 77 Days from the date of the taxing master’s decision.

8. The Court has considered the application and the annexures thereto, the response, the rival written submissions together the cited authorities and the relevant provisions of law. It is important for this Court to first determine whether the instant Reference can be sustained before it can proceed to determine the merits of the application.

i. Whether the Reference can be sustained? 9. The Plaintiff/Respondent contends that the application was filed after an inordinate delay of 77 Days, from the date the decision of the taxing master was made. This was a position maintained throughout his submissions. The Defendants/Applicants opted not to address this Court on the foregoing.

10. Rule 11 of the Advocates Remuneration Order lays down the procedure for appealing against the decision of a taxing master. It provides:Objection to decision on taxation and appeal to Court of Appeal1. 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 subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.

11. What the above provision contemplates is that the Defendants/Applicants ought to have within 14 days of March 28, 2022, given a notice to the taxing master on the items they objected to. A careful perusal of the file does not inform this Court whether the Defendants/Applicants moved the taxing master as required. Once the taxing master receives the notice he/ she is required to give reasons to the objector whereby the objector if aggrieved, will have 14 Days from the date of receipt of the reason to move the High Court accordingly.

12. Presently, the Defendants/Applicants have moved this Court by operation of Rule 11(2), whereby they have filed the Chamber Summons contemplated thereunder giving reasons for objecting to the decision of the taxing master. There was none compliance with paragraph 1. A look at the ruling of the taxing master informs this Court that the taxing master gave reasons for her decision on every item and it would thus not be necessary for the Defendants/Applicants to seek further reasons. This Court concurs with the holding of the Court in Muriu Mungai & Co. Advocates V New Kenya Co-operative Creameries [2012] eKLR, where the Court heldIt is therefore clear that the interpretation by the Courts especially the High Court on this issue is far and varied. In my own 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 decision, 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 the reference since that insufficiency may be the very reason for preferring a reference”

13. However, the above pronouncement of the Court does not mean that the Applicant can randomly move the Court. It only implies that there should be compliance with other provisions by moving the Court within 14 Days of the ruling or seeking leave of Court where necessary. Paragraph 4 of the foregoing section gives this Court the powers to extend time, subject to an application by an aggrieved party. Indisputably, the Defendants/Applicants filed the instant application beyond the statutory time with no leave from this Court. The Application was filed in Court on June 14, 2022, and that is at least 2 ½ months since the decision of the taxing master. The Court in the case of Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki[2022] eKLR, when striking out a Reference filed (19) nineteen days from the date of ruling, had this to say:In the present matter, the ruling by the taxing officer contained the reasons and therefore there was no need for the respondent/applicant to seek for the reasons for the taxation. As noted before, the notice of objection to taxation was filed nineteen days from the date the ruling was delivered and the respondent/applicant did not give any reasons for the delay. In my view there is no competent reference before the court the same having been filed out of time without the leave of the court.”The Court further held;The ruling by the taxing officer contained the reasons and the invocation of paragraph 11(2) of the Advocates Remuneration Order was unnecessary. If the applicant was dissatisfied with the ruling on taxation delivered on September 29, 2021 he ought to have filed a reference within 14 days of the ruling by the October 14, 2021. The reference was filed on October 19, 2021 clearly out of time and no application to enlarge time was sought by the applicant as provided under paragraph 11 (4) of the Advocates Remuneration Order.”

14. The Court in Mario Rossi v Salama Beach Hotel Limited [2018] eKLR, when considering whether a Reference filed out of time is a nullity within the provisions of Rule 55(1)(b) of the Court of Appeal Rules had this to say:It is common ground that time lines fixed by Statute or subsidiary legislation made thereunder are of essence since they are designed to achieve an intended purpose and outcome, that is, not only do they ensure procedural order and certainty within the judicial system, but also advance a just, uniform and efficient dispensation of justice. It is for that reason that courts advocate for strict compliance with such time lines.”

15. The Defendants/Applicants chose not to address this Court on the competence of the Reference. There is no measure for what constitutes delay, but when it occurs, it will not be difficult to decipher. The procedure required is that the instant application be filed within 14 days of the date of ruling. It is not clear why the Defendants/Applicants had to wait for 77 Days before filing the instant application. With no reasons for the delay or non-compliance, this Court agrees with the findings of the Courts in the foregoing cases and proceeds to find and hold that the Applicants’ Reference cannot be sustained. Therefore, the Court finds that the Reference filed on the June 14, 2022, should be struck out and is hereby struck out for non-compliance.

16. Having carefully considered the Chamber Summons Application dated April 13, 2022, the Court finds it not merited for non-compliance with the rules and consequently, the said Reference is struck out entirely with costs to the Plaintiff/Respondent.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 26TH DAY OF JANUARY, 2023. L. GACHERUJUDGEIn the presence of;Plaintiff/Respondent - AbsentMr Mumo H/B Mr Kimemia for the Defendants/ApplicantsJoel Njonjo - Court AssistantL. GACHERUJUDGE26/1/2023