[2023] KEHC 25566 (KLR)

Kenindia Assurance Company Limited v Raymond Olendo t/a Ogejo, Olendo & Co. Advocates (Miscellaneous Civil Application 09 of 2022) [2023] KEHC 25566 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25566 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Civil Application 09 of 2022

PJO Otieno, J

November 17, 2023

Between

Kenindia Assurance Company Limited

Client

and

Raymond Olendo t/a Ogejo, Olendo & Co. Advocates

Advocate

Ruling

1. On 12. 10. 2022, the Taxing Officer delivered a Ruling on an Advocate’s Bill of Costs dated 20. 01. 2022. On the same day a similar bill was taxed in Miscellaneous Application No. 5/2022. The two decisions aggrieved the Client who wished to file references but by the time it leant of the decisions time had lapsed. When the two matters came up for directions by the Court on 23/5/2023, it was directed that the two files be dealt with together for purposes of the similar applications seeking leave to lodge the Notice of Objection out of time.

2. In the Chamber summons dated 5/4/2023, the Client/Applicant gave the reason for failure to take steps in time to be that the decision was made in the absence of its Counsel and without notice contrary to Order 20 Rule 1 Civil Procedure Rules. It is contended that even the Respondent, in whose favour the decision was made, was never notified and that no reason had been proffered to justify the flagrant violation of the law. The Client urged and argued that grant of leave and extension of time would serve the enviable purpose of curing the breach of the law.

3. The application was opposed and resisted by the Advocate/Applicant on the basis that no sufficient reason had been proffered to justify the extension sought. On notice, it was contended that there was service of Notice of Taxation, Mention Notice and Notice under paragraph 13(2). Nothing is said of the Notice of the Ruling but it is contended that the Advocates Remuneration Order does not make it mandatory for the Taxing Master to give notice of Ruling.

4. Both sides have, pursuant to the directions by the Court, filed written Submissions in support of the rival positions.

5. For the Applicant, it is stressed that the Ruling on taxation was initially scheduled for the 28/9/2022 but was not delivered and set to be delivered upon notice, but no such notice had issued by the 12. 10. 2022 when it was delivered in the absence of the parties. It is then asserted that failure to issue notice in compliance with the law amount to denial of the right to fair hearing and ought to be frowned upon by the Court asserting that such is incapable of limitation. The Client cites to Court the decision in Ngoso General Contractors -vs- Jacob Gichunge [2005] eKLR and Central Bank of Kenya Ltd -vs- Muslim for Human Rights [2017] eKLR for the proposition that a judgment ought to be delivered, if not ex-tempore, with notice to the parties and where there is failure, the Court is called upon to set the records straight by enlarging time to give back to the aggrieved party that which was lost by default.

6. On the length of delay, the Client cites George Kagima Kariuki -vs- George Gichimu [2014] eKLR for the position in law that it is not the length of delay that matters but the explanation offered which should be plausible. In the context of this matter, it was highlighted that no prejudice would be occasioned to the Advocate if time is extended and stay granted because the Advocate has not shown any eagerness to enforce the decision for now a period in excess of one year.

7. On the merits of the intended referenced, the Client cited Wilfred Konosi T/A Konosi & Co. Advocates -vs- Flamco Ltd [2017] eKLR where the Court underscored the question as to existence of a retainer between an Advocate and Client to be key stressing that without Advocate Client relationship, there is no jurisdiction in the Taxing Officer to purport to tax costs. In the context of this matter the Client contends that even though that issue was live, having been raised before the Taxing Officer, the master glossed over same and totally failed to address same. It is thus urged that the application be allowed, time extended and stay granted pending determination of the reference.

8. For the Advocate/Respondent, the Submissions offered are to the effect that a delay for four months is inordinate and no sufficient explanation had been offered hence no threshold to grant extension of time has been met. On that account, the decision by the Court of Appeal in Azim Jiwa Rajwani -vs- Fidelity Commercial Bank [2021] eKLR was cited for the position of the law that where the delay is not explained, there is no discretion to be exercised in favour of the Applicant.

9. Church of God East Africa -vs- Dinah Buluma [2019] eKLR and Dipack Kenya Ltd -vs- William Muthama Kitonyi [2018] were cited for the position of the law that failure by an Advocate to inform Client is not a plausible explanation to merit extension of time because the Client has a duty to pursue his litigation and that even inadvertence when not explained does not suffice for purposes of extension of time.

10. On the duty or obligation of the Taxing Officer to notify parties of the Ruling date, it was contended that under the Advocates Act and the Remuneration Order made thereunder, there is no obligation created regarding notice to the Advocate, the order is silent on notice of Ruling unlike the Notice of Taxation which is coded in express terms under paragraph 72.

11. For stay, it is submitted, very grudgingly, that the position of Counsel on the subject on previous matters, which are not disclosed, has not been of help to them, but it is urged that if the Court was to grant stay, it should be on terms that the taxed costs be ordered deposited into an escrow account.

12. Like in all instances where there is a default to take steps within the stipulated time, an Applicant has the duty to explain the delay to the satisfaction of the Court. However, where the default is not originated by the Applicant, the consideration must take a different view. The different view in this case is that the Applicant is the genuinely aggrieved party by being denied a right that is vested and decreed to beyond limitation by the Constitution.

13. In giving that consideration, the Court must consider the potion of the Advocates that the Remuneration Order is silent on the need to give notice of Ruling hence the Taxing Officer has no obligation to do so.

14. To this Court, even though it is settled that the Advocates Act is a complete code, it is also true that there are basic and overriding principles of law that even before the Constitution 2010, were so entrenched and commanding that often never deserve regurgitation. One of such principles is the right to be notified of a decision against him. It is so basic but yet so important because, every decision made invites the right of challenge by anybody who may feel aggrieved.

15. The fact paragraph 11 of the Remuneration Order gives to any party to a taxation process the right to feel aggrieved and challenge the decision in a reference, reinforces the normative of the right to be heard. That one has a right to challenge the decision and within strict timelines is itself a compelling reason for the notification of when the decision would be made. Failure to notify parties when a Court decision is due denies them not only the right to a fair hearing but also the right to access justice by way of challenging the decision. The Court finds that failure by the Remuneration Order to specifically provide for notice to parties of a ruling cannot be construed to mean that a taxing officer has the liberty to determine the costs due without notice to parties.

16. The second limb of the issue is that, Civil Procedure Act and its Rules, are the default rules for procedure and are invited every time there is a lacuna in the specific procedure provided elsewhere. That the Remuneration Order fails to code the need to give notice leaves such lacuna which must be treated as a lacuna capable of remedy by the ubiquitous influence and demands of Rules, natural justice and, lately, the Fair Administrative Actions Act. It is thus the Court’s finding that every Taxing Officer, like all Judicial Officers, are bound to give his/her decision, if not made ex-tempore, only upon notice sufficiently served upon all the parties to the matter.

17. For this matter it being not in contention that no notice was given, the Court finds that the law was breached with the consequence that the Client was denied his undoubted right to object to the decision. That right must be affirmed, upheld, respected, defended and protected by every body as a duty imposed by article 3 of the Constitution. In upholding that right, this Court extends time within which the Client may lodge its objection to the decision dated 12. 10. 2022.

18. On whether there need to be stay proceedings pending determination of the reference, when filed, the Court takes the view that it needs not preempt what the ultimate decision in the reference would be. It is however appreciated that the reference, like all further proceedings in this matter, including seeking and obtaining Judgment on the Certificate of Taxation, must be conducted and dealt with in this same file.

19. As of today, no threat of execution exist as no Judgment has been sought. It is therefore not ripe to consider granting stay. It is equally not strategic to do so because whichever way the taxation goes, further steps would be taken as shall be necessary. It is thus the Order of the Court that to grant an order of stay of proceedings now will serve no interests of justice. It can be pursued once there exist a threat at execution.

20. In conclusion, the time within which to object to the Orders of 12. 10. 2023 is extended by ten (10) days to start running from today.

21. Costs of this application shall abide the referenced.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 17TH DAY OF NOVEMBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Merio Jackson for the AdvocateMs. Achieng for the ClientCourt Assistant: Polycap Mukabwa