[2022] KEHC 2400 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

MISCELLANEOUS APPLICATION NO. 179 OF 2019

IN THE MATTER OF THE ADVOCATES ACT CAP 16 LAWS OF KENYA

AND

IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT

BETWEEN

KANGETHE MOLA ADVOCATES............................................................ADVOCATE/APPLICANT

VS.

CORPORATE INSURANCE CO. LTD..........................................................CLIENT/RESPONDENT

RULING

1. The law firm Kangethe & Mola Advocates filed a bill of Advocates/Client’s Cost against their erstwhile client, Corporate Insurance Co. Ltd. The same was taxed in the absence of the client. The client has filed a chamber summons dated 15th December, 2002, seeking this Court’s leave to file a reference against that taxation out of time.

2. That application is supported by an affidavit by Linda Olweny. It is deponed therein that the client received the advocate’s final fee note dated 11th March, 2016 for Kshs.105,965/- which was paid by the client on 12th June, 2019. That despite that payment, the advocate pursued taxation for costs. The deponent stated that the taxation was inordinately high and exceeds the judgment amount of the matter the advocate represented the client. The deponent also stated, and indeed attached correspondence to the effect that it instructed an advocate to represent it during taxation but the said advocate failed to do so. The client wishes to challenge before this Court the taxation.

3. The advocate opposed the application on the ground that the client failed to attach a copy of the Ruling client wishes to challenge and that the client has failed to treat this matter with seriousness. The advocate termed the client’s application as afterthought and that it is intended to delay the advocate’s enjoyment of its fruits of taxation.

ANALYSIS

4. I have considered the application and the affidavit in reply. I indeed agree that the client inordinately delayed in seeking to challenge the taxation. I am however concerned that on perusing the court file, I have been unable to trace the Ruling of the Taxing Master of this Court on the said taxation. The advocate stated that the Ruling was delivered on 31st October, 2019. The court’s proceedings however shows that a Ruling was delivered on 20th February, 2020, although that Ruling is missing from the court file. Indeed, the only evidence of taxation is the Certificate of Taxation. With those missing documents in the court file, I wonder what this Court should make of it. I will reserve my comment for now.

5. Paragraph 11 of the Advocate (Remuneration) Order is the paragraph to guide this Court on the application under consideration. That paragraph provides:-

“11. Objection to decision on taxation and appeal to Court of Appeal.

(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 subparagraph (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), [and] may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(5) 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.

6. This Court has discretion, as the above paragraph reveals, to extend time to file a reference. In view of the anomalies of missing documents, I have highlighted above and because the client stated they instructed an advocate to act for it in the taxation of the Bill of Costs, but that advocate failed to do so, I will exercise this Court’s discretion in favour of the client. I am tempted to repeat the words of the Supreme Court in the case of COUNTY EXECUTIVE OF KISUMU VS. COUNTY GOVERNMENT OF KISUMU & 8 OTHERS (2017) eKLR thus:-

“InHASSAN NYANJE CHARO V KHATIB MWASHETANI AND 3 OTHERS,eKLR[2014]this Court stated:

‘[27] Counsel for the applicant has stated that he has exercised all due diligence to get the proceedings from the Court of Appeal, but to no avail...

[28] Would it be in the interests of justice then to turn away an applicant who has,prima facie,exercised all due diligence in pursuit of his cause, but is impeded by the slow-turning wheels of the Court’s administrative machinery? We think not.’”

7. The client had instructed an advocate to represent it in the taxation of the Bill of Costs but the client was let down by that advocate. It would not in my view be in the interest of justice to turn away the client who was prejudiced by the failure of its advocate.

DISPOSITION

8. Accordingly, I grant the following orders: -

(a) Corporate Insurance Co. Ltd is hereby granted leave to file a reference against the taxation hereof, out of time.

(b) Corporate Insurance Co. Ltd shall file such a reference within 14 days from today’s date.

(c) The costs of the chamber summons dated 15th December, 2020 shall abide with the outcome of such reference yet to be filed.

(d) There shall be stay of the Notice of Motion dated 24th August, 2020 until the hearing and determination of such reference yet to be filed.

(e) Orders (a) to (d) above shall be vacated if Corporate Insurance Co. Ltd does not file a reference as ordered herein. In that event, the costs of the chamber summons dated 15th December 2020 shall be awarded to Kangethe & Mola Advocates.

9. Orders accordingly.

RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice

For Kangethe & Mola Advocates: - Mr. Gacheru

For Corporate Insurance Co. Ltd: -Miss Ashoya HB Dr. Mutubwa

COURT

RULINGdelivered virtually.

MARY KASANGO

JUDGE