[2022] KEHC 11500 (KLR)

(Miscellaneous Application E117 of 2021) [2022] KEHC 11500 (KLR) (Commercial and Tax) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11500 (KLR)

Republic of Kenya

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

Commercial and Tax

Miscellaneous Application E117 of 2021

A Mabeya, J

June 3, 2022

IN THE MATTER OF TAXATION OF COSTS BETWEEN NYACHOTI & COMPANY ADVOCATES .........................APPLICANT -VERSUS - AMIRAN COMMUNICATIONS LTD ...........................RESPONDENT

MATTER ARISING FROM TRADEMARK EAST AFRICA COMPLAINT REVIEW BOARD TENDER NO: PROPOSED DESIGN AND BUILDING/CONSTRUCTION OF A DATA CENTRE AT KENYA REVENUE AUTHORITY (PO/20130854)

BETWEEN

AMIRAN COMMUNICATIONS LTD ...............................APPLICANT

-VERSUS -

TRADEMARK EAST AFRICA (PROCURING ENTITY) .......RESPONDENT

Ruling

1. Before court is a chamber summons application dated 29/10/2021 brought pursuant to rule 11(1)(2) & (4) of the Advocates (Remuneration) Orderand section 1A, 1B & 3A of the Civil Procedure Act.

2. The applicant sought an order to have the notice dated October 21, 2021 objecting to the decision of the taxing officer be deemed to have been validly filed within time and an order to have the time for filing a reference enlarged. That consequently, the reference dated October 29, 2021 be deemed to have been properly filed within time.

3. The application was based on the grounds that on 18/2/2021, the applicant filed an advocate-client bill of costs dated 18/1/2021 against the respondent seeking costs of Ksh 30,288,760. 60. Subsequently, the respondent filed an application dated 29/3/2021 seekinginter-alia orders to stay the taxation proceedings pending the determination of ELRC Cause No 1130 of 2018. A ruling delivered on 21/9/2021 in respect of the respondent’s aforementioned application stayed the taxation of the said bill of costs.

4. Thereafter the applicant lodged an appeal against the aforementioned ruling under order 49 rule 2 of the Civil Procedure Rules instead of filing it under rule 11 of the Advocates (Remuneration) Order which governs the taxation of costs. It is consequent to this that he lodged a notice of objection in respect of the said ruling vide a letter dated October 21, 2021 and a reference application dated October 29, 2021.

5. The applicant pleaded that the failure to file the said reference within 14 days from the date of delivery of the said ruling was an honest mistake on his part which he has sought to rectify timeously and that the intended reference is arguable with an overwhelming chance of success.

6. In opposition the respondent filed grounds of opposition dated November 23, 2021. It was contended that the application had not met the threshold required for the court to exercise its discretion in granting an extension of the time required to file a reference. That the applicant was misleading the court as it filed and served the respondent with a notice of appeal on 29/9/2021. That if indeed he intended to rely on order 49 of the Civil Procedure Rules 2010, he would have filed a memorandum of appeal within 7 days from 21/9/2021 which is the date on which the ruling was delivered.

7. Further, that there were no valid reasons for the applicant’s delay in filing the application, which is an abuse of the court process and ought to be dismissed.

8. The court has carefully considered the parties contestations and the submissions. Rule 11(1) and (2) of the Advocates (Remuneration) Order provides: -“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.”

9. The applicant averred that he mistakenly filed a notice of appeal instead of an objection against the ruling of 21/9/2021. The notice of appeal was dated 29/9/2021, the notice of objection was dated 21/10/2021 and the reference filed in court was dated and filed on 29/10/2021.

10. Under the rule 11 of the Advocates (Remuneration) Order, an aggrieved party may object to a taxing officer’s decision within 14 days and in writing. Rule 11(4) of the Advocates (Remuneration) Order empowers the court with the discretion to enlarge the time to file an objection and a reference.

11. The principles applicable are; whether the delay is inordinate; the reasons for the delay and the prejudice, if any, to be suffered by the opposite party.

12. In the present case, the ruling was on 21/9/21. The present application was filed on October 29, 2021, which was 24 days outside the prescribed period. To this courts mind, the application was filed timeously. A period of less than 30 days would ordinarily be taken not to be inordinate but each case has to be considered on its own peculiar circumstances.

13. The second consideration is the reason for the delay. The applicant averred that he mistakenly lodged a notice of appeal instead of an objection. That was a mistake of law. It is not a case of indolence. The court always exercises its discretion in the interest of justice for both parties and for the fair disposal of disputes. in the court’s view. The reason advanced for the delay is plausible.

14. The last consideration is the prejudice, if any, to be suffered by the opposite party. I see none and none was claimed. Since a notice of appeal was lodged and served, the respondent was put at the earliest time possible of the applicant’s grievance and intended challenge, albeit wrongly. Justice ought to be administered without undue regard to technicalities.

15. In the premises, I allow the application and grant prayer 2 and 3 of the application. Costs to the respondent in any event.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JUNE, 2022. A. MABEYA, FCIArbJUDGE