[2022] KEHC 361 (KLR)

Kenindia Assurance Company Limited v Advocates (Miscellaneous Civil Application 182 of 2020) [2022] KEHC 361 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 361 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 182 of 2020

JK Sergon, J

May 6, 2022

Between

Kenindia Assurance Company Limited

Applicant

and

Shah Parekh Advocates

Respondent

Ruling

1. The applicant herein has filed the Chamber Summons Reference (“the Reference”) dated 2nd June, 2020. The Summons is supported by the grounds set out on its face and the facts stated in the affidavit of Joseph Gachigua.

2. In the aforesaid motion the applicant sought for the following orders:i.Spent.ii.Spent.iii.That this Honourable Court be pleased to set aside the ruling of the taxing master dated the 31st of May, 2020 as well as the certificate of costs and all consequential orders thereof.iv.That the respondent’s Bill of Costs filed and dated the 19th of September, 2017 be remitted to another Registrar/Judge for review and re-assessment.v.That in the alternative, this Honourable Court be pleased to re-assess and review the respondent’s Advocate-Client Bill of Costs dated the 19th of September, 2017. vi.That cost of the application be provided for.

3. The respondent put in Grounds of Opposition dated 7th October, 2021 conditionally to oppose the Reference, raising the following grounds:a.That the applicant has filed the Chamber Summons in the wrong Division of the High Court namely in the Commercial and Admiralty Division which has no jurisdiction.b.That the applicant instead of filing a reference to the judge in the High Court under Paragraph 11 of the Advocates (Remuneration) Order has filed an appeal.c.That the applicant was given leave to file a reference against the decision of the taxing master on items nos. 322, 400, 415 and 417-463 only. The applicant has failed to file such reference.d.The applicant has filed an appeal on grounds which were not pleaded or argued before the taxing master nor before the High Court.e.For the above reasons, the respondent prays this Honourable Court to dismiss or strike out the Chamber Summons of the applicant dated 2nd day of June, 2020 with costs to the respondent.

4. The respondent also put in the affidavit sworn by advocate Hasmukhrai Manilal Parekh on 7th October, 2021.

5. Pursuant to the directions issued by this court on 2nd February, 2022 the Reference was to be disposed of through written submissions.

6. I have considered the grounds set out on the body of the Summons; the facts deponed in the affidavits filed in support and in opposition thereto; the Grounds of Opposition and the submissions on record.

7. A brief background of the matter going by the record is that the respondent filed the Advocate-Client Bill of Costs dated 19th September, 2017 in Misc. Civil Application No. 405 of 2017 before the High Court.

8. The Bill of Costs was placed before the taxing officer,Honourable L. Mbacho and was taxed at the sum of Kshs.1,721,992/= vide the ruling delivered on 31st May, 2019 and a certificate of taxation was issued on 24th June, 2019.

9. Subsequently, the applicant filed the application dated 2nd July, 2019 and sought for inter alia, an order for the enlargement of time within which to file a notice of objection and a reference to challenge the aforementioned ruling on taxation, out of time.

10. Upon hearing the parties on the abovementioned application,the court in the ruling delivered on 14th May, 2020 granted the orders indicated under paragraph 8 herein.

11. Returning to the Reference, before I consider it, I note that the respondent by way of the Grounds of Opposition has raised two (2) key issues which require my determination at this stage.

12. The first issue touches on whether the Chamber Summons Reference has been filed in the proper court.

13. According to the respondent, the Chamber Summons was filed in the Commercial and Admiralty Division and yet it ought to have been filed at the Civil Division of the High Court.

14. In retort, the applicant contends that the title of ‘Commercial and Admiralty Division’ is erroneous and that the same was subsequently amended to read ‘Civil Division.’

15. Upon my perusal of the record, while I note that the Chamber Summons Reference reads Commercial and Admiralty Division,’ it bears the court stamp for the Civil Division, which would support the averments being made by the applicant that the title was the result of an inadvertent error and which explanation I find to be reasonable in the circumstances.

16. On the second issue touching on the filing of an appeal as opposed to a Reference, it is the contention of the respondent that instead of filing a Reference before the High Court-Civil Division in Misc. Civil Application No. 405 of 2017 the applicant proceeded to lodge the present appeal before this court.

17. The applicant on its part is of the view that the present matter constitutes a Reference properly filed before this court.

18. Upon my study of the record, I observed that the present Chamber Summons is a Reference and not necessarily an appeal in the manner indicated by the respondent.

19. Be that as it may, upon my further perusal of the record, I note that upon hearing the applicant’s application dated 2nd July, 2019 filed in Misc. Civil Application No. 405 of 2017 the High Court in the abovementioned ruling delivered on 14th May, 2020 extended the time required for the applicant to both file a notice of objection to the taxation and to file a Reference.

20. From my study of the material placed before me, it remains unclear why the applicant chose to file a Reference in this matter as opposed to filing the same in Misc. Civil Application No. 405 of 2017.

21. Further to the foregoing, I also note that there is nothing to indicate that the applicant complied with the abovementioned court order by filing a notice of objection to the taxation, and yet in its instant Reference, the applicant faulted the taxing master for not providing reasons for her decision on taxation. In any case, the record provided does not bear the ruling and reasons for taxation for this court’s reference.

22. Going by the record, I observed that the respondent had annexed what seems to be a draft and undated notice of objection, which would support my findings above.

23. In view of the foregoing circumstances, I am of the view that the applicant herein ought to have fully complied with the court orders issued on 14th May, 2020. I am equally of the view that the applicant ought to have filed the Reference under Misc. Civil Application No. 405 of 2017 for continuity purposes.

24. In the circumstances, it is not appropriate to consider the merits of the instant Reference and I am only left with the option to order the striking out of the reference with costs which I hereby do.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:................. for the Applicant................for the Respondent