[2020] KEHC 6525 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL CASE NO. 103 OF 2018

JAMES AGGREY MWAMU

T/A MWAMU & CO. ADVOCATES............APPLICANT/RESPONDENT

-VERSUS-

THE COUNTY ASSEMBLYOF MIGORI....RESPONDENT/APPLICANT

RULING

The application dated 19th November 2019, was brought by the COUNTY ASSEMBLY OF MIGORI, who are seeking an enlargement of time to lodge a Notice of Objection to the taxed costs.

1. The application is premised on the following grounds, as set out on its face;

“1. The Respondent herein allegedly providedlegal services to the Migori Public Service Board; County AssemblyService Board and the County Government of Migori in KisiiConstitutional Petition No. of Migori in KisiiConstitutional Petition No.34 of 2014.

2. The Respondent ultimately filed theAdvocate/Client Bill of Costs dated18/06/2018 in a bid to tax andrecover his legal fees against hisClients.

3. The aforesaid Bill of Costs prayedfor Kshs 7,519,282. 40 cts, seeminglythe same was taxed as drawn on25/07/2018 and a Certificate of Costsdated 20/08/2018 duly extracted.

4. The Taxing Officer’s decision wasrendered on 25/07/2018 and theapplicant herein, Migori CountyAssembly, being dissatisfied with thetaxed costs, intends to issue a Noticeof Objection pursuant to Paragraph11 (1) of the Advocates RemunerationOrder, with a view to roll out a reference.

5. In the circumstances, it is obvious thatthe 14 day period within which a Noticeof Objection to the taxing officer’s rulingon taxed costs on 25/07/2018 has lapsed.

6. Paragraph 11 (4) of the Advocates(Remuneration) Order 1962, clothes theHonourable Court with discretion to enlargetime within which such Notice of Objectionmay be presented, and/or the 14 day periodthe taxing officer is bound to have assignedhis reasons on the objected taxed items inthe Notice of Objection.

7. The Applicant avers that there was noAdvocate/Client relationship between herand the Respondent, in view of the fact thatthe County Assembly Service Board has thedistinct statutory mandate to procure goodsand services on behalf of the Applicant.

8. The Applicant never issued an instructionletter to the Applicant to act on her behalf,and it is likely that the County Governmentof Migori, the executive, which engagedthe Respondent in the Kisii ConstitutionalPetition No.34 of 2014, mainly contestedthe Constitutional members of the MigoriCounty Public Service Board.

9. Notwithstanding the foregone, theApplicant equally avers that the taxedcosts of Kshs 7,519,282. 40 cts ismanifestly excessive, contrary to the laiddown principles established in theAssessment of Bill of Costs.

10. The Applicant concedes that thisapplication has been brought 1½ yearslate, when the Notice of Objection shouldhave been lodged but this has been occasioned by consultation between the Assembly and the Execution,on which the organ ought to have taken upthe Reference in view of the colossal sum.

11. The Applicant is constitutionally entitledto Fair Administrative Action as envisagedunder Article 47 of the Constitution, andindeed offers to recompense any prejudicesuffered and input of the Respondent’s timeloss in these proceedings so far, by way ofreasonable “Thrown Away Costs.”

12. There is a public interest element todispute, whereby funds should be paid outin the clearest and fairest of cases.”

2. I have set out the Grounds extensively because when the Applicant was canvassing the application, it stated that the said Grounds constituted its submissions.

3. The supporting affidavit which was sworn by EMMANUEL ABALA, the Acting Clerk of the County Assembly of Migori, was essentially in the same language and style as the Grounds upon which the application was founded.

4. In answer to the application the Respondent pointed out that the Applicant never responded to the Bill of Costs when it was served upon them.

5. Even after the Bill of Costs was taxed, the Applicant was served with an application through which the Respondent herein was seeking judgment, on the basis of the taxed costs.

6. I find that the Applicant was duly served with the Advocate/Client Bill of Costs. Therefore, the Applicant was accorded an opportunity to respond to the said Bill of Costs.

7. It the Applicant was disputing retainer, it had an opportunity to do so.

8. If the Applicant was challenging the sums set out in the Bill of Costs, it had the opportunity to do so during the taxation process.

9. The Applicant has not provided this court with any reasonable explanation for its failure to either challenge retainer or to participate in the taxation process.

10. Having been served, the Applicant was provided with an opportunity to forward its case.

11. The right to fair administrative action does not imply that the tribunal or organ which has the mandate to adjudicate in a matter must hear both parties.

12. The parties are entitled to an opportunity to be heard, before the Tribunal or the organ makes a determination.

13. If a party has been accorded an opportunity to be heard, but fails to utilize that opportunity, it cannot be heard to complain that its right to a fair administrative action had been violated.

14. The Applicant submitted that there is an element of public interest in the dispute, so that funds ought only to be paid out in the clearest and fairest cases.

15. However, the Applicant did not tell this court how, if at all, the matter before me was either not clear or not fair.

16. In my considered view, this application seeks to challenge a judicial process, in which the court gave to all the parties, an opportunity to be heard at every stage, before decisions were made.

17. I find no basis for the insinuation that the case might have been lacking in either clarity or fairness.

18. I do appreciate that because payment of the decretal amount would be made out of public funds, there is an element of public interest in the matter.

19. It was the responsibility of the Applicant to take all the requisite actions, with a view to safeguarding public interest.

20. By failing to respond to the Bill of Costs or to the application for judgment, the Applicant appears to have consciously chosen to abdicate its responsibility of safe-guarding public interest.

21. It appears to me that the Applicant was now shedding crocodile tears, by invoking the issue of public interest.

22. Nonetheless, this Court is fully alive to the possibility that the Applicant may wish to later heap blame on the Judiciary for compelling it to pay the decretal sum. Such an intention would be wholly unjustified because the Applicant had been given every opportunity to state its case before the court made decisions.

23. However, in order to lay bare the complete transparency of the justice system, in the unique circumstances of this case, I do hereby grant to the Applicant an extension of SEVEN (7) DAYS, within which to lodge a Notice of Objection to the taxed costs.

24. The Applicant shall pay to the Respondent, the costs of the application dated 19th November 2019.

25. Finally, as all the actions of the Respondent have been conducted in a regular manner, thus far, I direct that the Applicant shall deposit the decretal amount in a Joint Interest-Earning Account, in the names of the Advocates representing the two parties: The said deposit must be in place within the next 30 days, failing which the extension granted herein shall stand vacated.

26. It is so ordered.

DATED, SIGNED and DELIVERED at KISUMU

This 29thday of April 2020

FRED A. OCHIENG

JUDGE