[2022] KEHC 15598 (KLR)

Indian Ocean Properties Limited v Kimani & Michuki Advocates (Commercial Case E1246 of 2020) [2022] KEHC 15598 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15598 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case E1246 of 2020

DO Chepkwony, J

October 14, 2022

IN THE MATTER OF: THE ADVOCATES ACT CAP 16 OF THE LAWS OF KENYA AND IN THE MATTER OF: THE ADVOCATES-CLIENT BILL OF COSTS UNDER SCHEDULE VII OF THE ADVOCATES REMUNERATION ORDER, L.N. 50 OF 2009 AND L.N NO. 35 OF 2014

Between

Indian Ocean Properties Limited

Applicant

and

Kimani And Michuki Advocates

Respondent

Ruling

1. Before this Court for Ruling is a Chamber Summons application dated November 25, 2021, expressed in terms of Paragraph 11(1)(2)(4) of the Advocates Remuneration Order, Section 3A of the Civil Procedure Act, CAP 21, Order 42 Rule 6(1) of the Civil Procedure Rules and Articles 159(2)(d) and 50 of the Constitution of Kenya, 2010 seeking for the following orders:-a.Spent;b.That the Honourable Court be pleased to grant leave to the Applicant to file an Objection and a Taxation Reference out of time against the Ruling of the Honorable Court's Taxing Officer delivered on March 4, 2021. c.That subject to leave being granted in prayer (1) above, the same do operate as stay of execution of the Ruling of the Taxing Officer and certificate of taxation dated March 10, 2021 aforesaid and any other consequential proceedings pending the hearing and determination of the reference.d.That the findings and Ruling of Hon. Opande, and certificate of taxation dated March 10, 2021 be set aside and the Respondent's advocate-client bill of costs dated November 25, 2020 be remitted back to the Taxing Officer other than Deputy Registrar SA Opande to be re-assessed afresh.e.That in the alternative, this Honourable Court be pleased to set aside the Ruling and the Certificate of Taxation dated March 10, 2021 and proceed to tax Advocates-Client bill of Costs dated November 25, 2020 inter-parties and give its findings.f.That costs and further incidentals to this Application be provided for.g.That such further or other relief as the Honourable Court may deem fair and just to grant.

2. The Chamber Summons application is supported by the annexed affidavit of Getrude Gichuru and the grounds on the face of the application. In summary it is deposed therein as follows; -a.That the Advocate’s-Client Bill of Costs dated November 25, 2020 proceeded unopposed thus denying the Applicant an opportunity to object to the specific items in the Bill.b.That the non-participation of the Applicants in the proceedings leading to the ruling dated March 4, 2021 was neither by design nor deliberate but was due to inadvertent omission by one of the legal officers (who is no longer with the Applicant having left for greener pastures) to bring these proceedings to its attention to enable it issue instructions to its advocates in time.c.That the failure by the now departed legal officer to do a smooth hand-over has placed the Applicant in a precarious position as it is now faced with execution proceedings which are threatening its very existence.d.That the Applicant deserves to be afforded an opportunity to be heard before such adverse orders can be made by this Honourable Court.e.That considering the colossal amount involved, it will be fair, just and equitable for this Honourable Court to remit the Advocates-Client Bill of Costs dated November 25, 2020 back to the Taxing Officer for re-assessment.f.That an award of Kshs 1,521,728. 96/= is manifestly and inordinately high considering the subject value contained on the Statutory Notice which was used to calculate the instructions fees.g.That the Applicant herein is not opposed to paying Advocates-Client assessed costs so long as they are accorded an opportunity to challenge some of the items contained in the Bill of Costs dated November 25, 2020. h.That the Taxing Officer erred in law and in principle in awarding getting up fees and yet there was no denial of liability or joinder of issues.i.That the Respondents did not attach to its bill of costs dated November 25, 2020 instructions note from the Applicant instructing them to enter appearance or defend them in the matter which is the subject of these taxations thus rendering the Ruling and consequential orders thereof null and void ab initio.j.That the Applicant's advocate was informed by his client that the Respondent's decision to proceed with the taxation of the advocate-client bill of costs dated November 25, 2020 was not in good faith as the parties were still negotiating to have the matter settled out of court or at least compromise on the costs payable to the Respondent.k.That therefore the Applicant's advocate was not able to file the reference or objection within 14 days as specified under Paragraph 11(1) of the Advocates Remuneration Order, 2014 which is after the expiration of the time limits set out in the foregoing provisions of the law.l.That it is now trite that, a mistake or omission of an advocate (or Legal Officer in our case) should not be meted on an innocent client.m.That the Applicant stands the Risk of distress and attachment, due to an irregular taxation where there exist errors apparent on the taxed down figure, to the gross harm of the Applicant.n.That the Court enjoys wide discretionary powers under the Civil Procedure Act andRules more specifically as stipulated in Sections 1(A), 1(B), 3(A), Section 79 (G) of the Civil Procedure Act on overriding objective, the inherent jurisdiction and on account of sufficient cause to exercise jurisdiction in matters of this nature for the interest of justice.

3. The Chamber Summons application is opposed by the Respondent vide a Replying Affidavit of Alpha Gakunga dated February 11, 2022. In brief, the Respondent has stated therein as follows;-a.The application is replete with falsehoods and non-disclosure of material facts behind the taxation of the matter.b.The Applicant retained the Advocate/Respondent to act for them in the High Court Civil Case No 489 of 2016. c.The Applicant refused to make payment for legal fees despite having always been aware of its indebtedness hence the filing of the bill of costs dated November 25, 2020. d.The Applicant was duly served with the Bill of Costs and despite having been so served, did not object the bill and did not attend Court.e.The Deputy Registrar taxed the Bill and delivered her ruling and Reasons on March 4, 2021 and the said ruling was shared with the applicant on March 4, 2021. f.Subsequently a certificate of costs dated March 10, 2021 signed by the Deputy Registrar was issued for the taxed amount of Kshs 740,804/=.g.The Certificate of Taxation was shared with the Applicant on 15th March, 2021 and no response or objection was occasioned by the Applicant.h.If the Applicant had any objection to the said taxation by the taxing officer, then he was required under Rule 11(1) and (2) of the Advocates Remuneration Order to within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects and thereafter within 14days file a reference before the judge by way of Chamber Summons.i.The Applicant has not provided a notice of the specific items they dispute in the decision of the Taxing Officer.j.The applicant has not satisfied the grounds for grant of stay of execution as prayed.

4. The application was canvassed by way of written submissions directions having been issued by this Court on February 16, 2022. The client/Applicant’s submissions are dated April 19, 2022, while the Advocate/Respondent’s submissions are dated May 4, 2022.

Analysis and Determination 5. I have considered the Chamber Summons application by reading through the affidavits on record, the annexures thereto and the written submissions alongside cited authorities filed by both parties. I find that the issues arising for determination before this Honourable Court are:-a.Whether or not extension of time should be granted; and,b.Whether the Applicant has made out a case to warrant grant of stay of execution.

6. On the question of leave to extend time, the entry point is Paragraph 11(1) and (2) 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. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.4. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for 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.

7. The law envisages that within fourteen days after delivery of the Taxing Officer’s decision a Notice in writing requesting for reasons on taxation of specified items in the Bill of Costs that are objected to be issued. Upon receipt thereof, the Applicant may then make an application by way of a reference to a Judge, by way of Chambers Summons setting out the grounds of objection to the taxation.

8. It is noted that leave to extend time is not an automatic right of a party bu is a discretionary remedy of the court which is only exercised based on the material and evidence placed before the court. In exercising its discretion regarding extension of time, this court is guided by the holding in the case of Paul Wanjohi Mathenge vs Duncan Gichane Mathenge[2013]eKLR, wherein the Court of Appeal while referring to other authorities observed;-“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”.

9. In the case of Henry Mukora Mwangi vs 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 on 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.”

10. It is clear from the cited authorities that the length of delay for non-compliance with the provisions of the law is an important component for this Court to take into consideration in exercise of its discretion in applications for leave to extend time.

11. Upon perusal of the Court record, I note that the impugned decision was delivered on March 4, 2021 whereas the Applicant filed the Chamber Summons application for extension of time on November 25, 2021. The delay in filing the application is about 9 months. This delay has not been satisfactorily explained by the Applicant. The only explanation this Court deciphers from the Applicant’s pleadings is that the legal officer who was in conduct of the matter left their offices without a proper handover. This is not a ground for the Applicant not to comply with an express provision of the law as the case belongs to the client and not an advocate. In any case, the office did not close with the departure of the advocate. The day is therefore inexcusable or inadvertent and without satisfactory explanation.

12. In the case of Andrew Shisala Angalushi vs Zephenia K Yego Aginga Asiligwa Chanzu(2020)eKLR, the Court held that;“In the instant case there is no reasonable explanation for the delay in filing the reference. More so, the applicant has not attached a draft of the proposed reference for this court to consider whether he has good grounds. The applicant has failed to satisfy the threshold in granting orders for leave to extend time for filing a reference.”

13. The Respondent has been able to prove that it served and notified the Applicant with every document, at every stage before the execution stage. This has not been rebutted by evidence on the contrary by the Applicant. It is this Court’s view that the Applicant has not satisfied this court the ground upon which this court can exercise its discretion to extend time in its favour to file a reference under Paragraph 11(1) and (2) of the Advocates Remuneration Order.

14. In light of the foregoing, it is my finding that the delay by the Applicant has not been satisfactorily explained. Accordingly, the Chamber Summons dated November 25, 2021 is unmerited and is thus dismissed with costs to Respondent.

15. Having said that, this Court will not delve on the second limb of the Applicant’s Chamber Summons application on stay of execution, as that would amount to an academic exercise.

Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS 14TH DAY OF OCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Gakunga counsel holding brief for Mr. Owino counsel for AdvocateM/S Sharon-Karen counsel holding brief for Mr. Ntabo counsel for RespondentCourt Assistant - Sakina