[2022] KEHC 16009 (KLR)

Kirundi v Dispute Resolution Committee of Kenya Tea Development Agency Holdings Limited & another (Judicial Review Miscellaneous Application 5 of 2017) [2022] KEHC 16009 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16009 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review Miscellaneous Application 5 of 2017

FN Muchemi, J

December 1, 2022

Between

Geoffrey Chege Kirundi

Applicant

and

Dispute Resolution Committee of Kenya Tea Development Agency Holdings Limited

1st Respondent

Kenya Tea Development Agency Holdings Limited

2nd Respondent

Ruling

1. The application dated June 11, 2021 seeks for orders of extension of time to file a Notice of Objection against the decision of the Taxing Master dated July 13, 2018 and thereafter file a Reference against the decision of the Taxing Master dated July 13, 2018 within 14 days from the date of receipt of the reasons of the Taxing Master.

2. The respondents filed a replying affidavit dated June 18, 2021 in opposition to the application.

Applicant’s Case 3. The applicant deposed that the respondents filed separate bill of costs. The one dated February 5, 2018 came up for hearing on July 13, 2018. The date was fixed by the respondents ex parte and the applicant contends that his counsel was served with the taxation notices. The applicant further contends that he is informed by his advocates that the notices were received by a pupil in the firm, one Mr Muhota Wageita. Upon receiving the notices, Mr Muhota erroneously diarized the taxation for August 13, 2018 as opposed to July 13, 2018.

4. On July 13, 2018, the applicant avers that the taxation proceeded ex parte, in the absence of his advocates owing to the inadvertent misdiarization. Further, the respondents had filed written submissions in support of their respective bill of costs but did not serve the same on the applicant despite a request for such service the same. The taxing master proceeded to tax the 1st and 2nd respondents’ bill at Kshs 1,090,510/- and Kshs 1,092,090/- respectively on the basis of the respondents submissions. The respondents thereafter obtained certificates of taxation.

5. The applicant contends that upon realizing that taxation had proceeded ex parte, he moved the taxing master vide paragraph 13A of the Advocates Remuneration Order 2009seeking to have the taxation proceedings of July 13, 2018 set aside. The respondents thereafter filed a joint replying affidavit dated September 11, 2018 in opposition to the said application. The taxing master rendered her ruling on November 13, 2019 and declined to set aside the subject taxation proceedings stating that she could not set aside the certificates of costs issued pursuant to the taxation proceedings.

6. The applicant avers that he then moved the court objecting the decision of the Deputy Registrar vide an application dated November 27, 2019 but the court dismissed his application principally on the ground that the remedy lay in filing a Reference against the decision of the taxing master made on July 13, 2018. In the circumstances, the applicant seeks to have the time extended to move the court under paragraph 11 of the Remuneration Order.

7. The applicant argues that he has demonstrated good and sufficient reasons to warrant him extension of time to file an objection and thereafter file a reference. He further states that he has demonstrated how time was lost and the intention to come to court within time was not negligent or indolent. He further argues that the main reason for his delay stemmed from the option of initially moving the taxing master under paragraph 13A vide the application dated August 10, 2018, moving this court vide the motion dated September 19, 2018 and preferring an appeal against the decision of the taxing master dated November 13, 2019 vide the application dated November 21, 2019 which was dismissed on January 22, 2021.

8. The applicant is apprehensive that he shall stand to suffer irreparable loss and ignominy. He further contends that no prejudice shall be suffered by either party if the court enlarges time to put in a Notice of Objection and grants him leave to file a Reference.

The Respondents’ Case 9. The respondents submit that the application is an abuse of the court process, vexatious, a waste of the court’s time and is only meant to clog the judicial system. The respondents aver that the applicant has previously raised the same issues in his application dated August 10, 2018, September 19, 2018 and September 27, 2019 and the court determined the issues hence the instant application is res judicata and an abuse of the court process. The respondents further argue that by re-opening issues that were already determined by a court of competent jurisdiction, the applicant is violating the principles that a court lacks jurisdiction to determine matters that are res judicataand that a party cannot approbate and reprobate at the same time in the same breadth.

10. The respondents aver that the bills were taxed on July 13, 2018 and the applicant was required to file a reference within (14) days after the delivery of the decision however the applicant did not do so. Further, the applicant has not given any reasonable explanation for the delay in filing and serving the reference and thus the court should not assist an indolent party and neither should it exercise its discretion in favour of the applicant. The respondents further contend that by not filing a reference on the taxing master’s decision dated July 13, 2018, this court is bereft of jurisdiction to handle the purported application, guised as a reference of the taxing master’s decision of July 13, 2018.

11. The respondents contend that the instant application has been cunningly and maliciously couched as a reference of the taxing master’s decision of November 13, 2019, which dismissed the applicant’s application seeking to set aside costs awarded to the respondents. They further contend that the instant application has been filed outside the statutory limitations on timelines and thus the entire application is incurably defective. Moreover, the respondents state that the application has been filed without the leave of the court.

12. The respondents argue that in as much as the instant application is disguised as a reference of the decision of the taxing officer of November 13, 2019, the applicant has not specifically objected to the said decision, thereby rendering the subject instant application a nullity. Moreover, the respondents aver that the applicant has always been granted an opportunity to be heard and indeed has been heard on all the applications as filed. In light of the above, the respondents argue that the application is an abuse of the court process, meant to clog the respondents’ enjoyment of their judgment on costs, in the hope that the issue of costs shall remain open and unpaid in perpetuity. The respondents contend that the applicant has introduced new issues at this appellate stage on an intended reference but he has deliberately not attached any of the impugned decisions.

13. Parties hereby disposed of the application by way of written submissions.

The Applicant’s Submissions 14. The applicant relies on the case of Joseph M’Rukiri vs Thangicia M’Imunya [2021] eKLR and submits that his constitutional right to be heard was violated as he did not attend the taxation proceedings due to inadvertent mistake and neither did the respondents serve him with the submissions in support of their bills of costs. The applicant contends that the court ought to have afforded him an opportunity to respond to the respondents’ submissions before being condemned to pay the costs. The applicant thus relies on the case of James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another[2016] eKLR and prays that the court allow his application because holding otherwise would occasion him suffering and violate his constitutional right to be heard.

15. The applicant further relies on the cases of Philip Cheminolo & Another vs Augustine Kubende (1982-88) KAR 103 andXplico Insurance Co Limited vs Elias Maina Mwangi [2019] eKLR and concede that he made a mistake in trying to remedy the decision of July 13, 2018 and urges the court to allow him a chance to correct his mistake by extending time to file a reference and notice of objection. Moreover, mistake of counsel ought not to be visited on a party and the applicant argues that the court has a duty to ensure that he does not suffer an injustice due to the mistake of his counsel. To support his contention he relies on the decision of Paul Asin t/a Asin Supermarket vs Peter Mukembi (2013) eKLR.

16. The applicant relies on the cases of County Government of Tana River vs Miller and Company Advocates[2021] eKLR and Paul Wanjohi Mathenge vs Duncan Gichane Mathenge[2013] eKLR and submits that he has demonstrated sufficient reasons to warrant the court’s discretion in extending time to file a notice of objection and reference. He argues that the sole reason for the delay stemmed from the option of initially moving the taxing master vide the application dated August 10, 2018, moving this court for reprieve by application dated September 19, 2018 and preferring an appeal against the decision of the taxing master vide the application dated November 21, 2019. As such, the applicant submits that the intention to come to court within time was not negligent and the same is enough to justify the granting of the extension of time to file a reference and notice of objection.

17. The applicant reiterates his averments in the supporting affidavit that no prejudice will be suffered by either party if the court grants the orders sought as prayed. He relies on the case of PMM vs JNW [2020] eKLR to support his contention.

The Respondents’ Submissions 18. The respondents rely on Section 7 of the Civil Procedure Act and on the cases of Njue Ngai vs Ephantus Njiru Ngai & Another[2016] eKLR; Ukay Estate Ltd & Another vs Shah Hirji Manek Ltd & 2 Others[2006] eKLR; Uhuru Highway Development Limited vs Central Bank of Kenya & 2 Others [1996] eKLR; Morjaria vs Abdalla [1984] eKLR; Peter Ngome vs Plantex Company Ltd [1983] KLR and submit that the issues raised in the application are res judicata. The respondents argue that the previous applications and the instant application seek for stay of proceedings of July 13, 2018 and the setting aside of the proceedings before the taxing master. The respondent further states that although the prayers in the instant application have been reframed to seek extension of time to file a reference, the issue for determination remains whether the proceedings before the taxing master should be stayed or set aside. Furthermore, the applicant pleaded on similar grounds that the applicant’s advocate wrongly diarized the date of taxation and the applicant was not granted an opportunity to be heard. The respondent argues that those issues have already been addressed in the previous applications and thus there is no new issue that has to be sought in the instant application.

19. The respondents further submit that the applicant has lodged an appeal in the Court of Appeal on the decision of this court dismissing the judicial review proceedings and the court made a note of the same whilst delivering its ruling on January 21, 2019. Evidently, the court already determined the issues thus rendering the instant application res judicata and this court is bereft of jurisdiction to deal with the same.

20. The respondents rely on the case of Randolph Tindika & Co Advocates vs Luka Mwambaga Msagha [2017] eKLR and submit that a party seeking to file a reference against the decision of the taxing master is required to file an application within 14 days of the ruling. The taxing master delivered his ruling on July 13, 2018 and the instant application was filed on June 11, 2021, a period of three years after the ruling was delivered.

21. The Supreme Court decision of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others [2014] eKLR sets out the principles that should guide a court in dealing with an application for extension of time which the respondents contend have not been satisfied by the applicant. The respondents submit that the applicant is guilty of inordinate delay because although counsel for the applicant called the respondents’ counsel to know what transpired on July 13, 2018, he did not file a reference since July 28, 2018. Further, the respondents contends that the delay was inordinate because of the applicant did not file the instant application for extension of time but filed other applications disguised as reference which were dismissed by the court and further the failure by the applicant to file the instant application for extension of time even after the court decision of January 21, 2021, but filed his application on June 11, 2021, four months after the decision of the court. The respondents reiterate that the period of delay is inordinate and they rely on the case of Nginyanga Kavole vs Mailu Gideon [2019] eKLR to support their contention.

22. The respondents argue that the applicant has failed to offer a valid explanation for his failure to bring the instant application. It is further stated that the applicant was aware of the ruling of the taxing master but opted not to file a reference or the instant application but filed an application guised as a reference which was dismissed by the court. Although the applicant states that the delay was occasioned by failure to correctly diarize the matter by the pupil, he does not offer any explanation for the delay even after he was aware of the proceedings and only states that he took cue from the ruling dated January 21, 2021, to file the instant application. The respondents argue that if the events as deposed by the applicant’s advocate in the supporting affidavit are anything to go by, they are not ordinary mistakes but serious lapses or negligent conduct. To support their contention, the respondents rely on the case of Netplan East Africa Limited vs Investment and Mortgages Bank Limited [2013] eKLR.

23. The respondents rely on the decision of Nginyanga Kavole vs Mailu Gideon [2019] eKLR and further submit that the applicant has a duty to follow up on his case as is expected of a litigant even when he is represented by counsel.

24. The respondents submit that there is nothing placed on record to show what action the applicant took between July 13, 2018 and June 11, 2021, when the instant application was filed. The respondents contend that the applicant having opted to file other applications instead of filing a reference is thus bound by the outcome of the said ruling and he cannot purport to file the instant application with the sole intention of circumventing the orders issued in the previous applications. As such, the respondents rely on the case of M/s Kipsang’ & Co Advocates vs Chebara Farmers Co Ltd [2020] eKLR to support their contention. The respondents argue that the delay is inordinate and has not been explained and thus inexcusable and should not excite any lenient exercise of discretion by the court.

25. The respondents further rely on the cases of Gori, Ombongi & Company Advocates vs Mary Wangechi Kamara [2022] eKLR and Andrew Shisala Angalushi vs Zephenia K Yego & Aginga Asiligiwa Chanzu [2020] eKLR and submit that the applicant has failed to attach a draft reference and thus the court is unable to interrogate the case of the applicant and determine whether there were triable issues being raised. Further, the applicant has failed to demonstrate whether the reference is merited and therefore the court ought to dismiss the instant application.

26. The respondents submit that they shall be prejudiced by the delay if the application is allowed and rely on Article 159 (2) of theConstitutionand the cases of Mukunya Mugo & Another vs Elizabeth Mugure Mukunya [2018] eKLR and Governors Balloon Safaris Ltd vs Skyship Company Limited & Another [2013] eKLR to support their contentions.

27. The respondents submit that the applicant has not demonstrated a case warranting the orders sought and the instant application is an afterthought and urges the court to dismiss it.

The Law Whether the matters are res judicata 28. The doctrine of res judicata is set out in Section 7 of the Civil Procedure Act. The doctrine ousts the jurisdiction of a court to try any suit or issue which had been fully determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title. Section 7 of the Civil Procedure Act provides:-"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

29. This principle was enunciated in the Court of Appeal in the case of The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others[2017] eKLR where the court held:-"For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised."

30. The Court went on to state on the role of the doctrine:-"The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation an affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against the wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and for a, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.

31. It therefore follows that the rationale for the doctrine of res judicata exists to protect public interest so that a party should not endlessly be dragged into litigation over the same issue or subject matter that has otherwise been conclusively determined by a court of competent jurisdiction.

32. The respondents argue that the issues raised in the instant application are res judicataas they have been raised in previous applications by the applicant and determined by courts of competent jurisdiction. It is worth mentioning that the applicant has filed three applications prior to the current one and that the previous ones were determined. The application dated August 10, 2018 was seeking for the setting aside of the taxation proceedings which took place on July 13, 2018. The applicant further sought to have the certificate of costs set aside and the bill of costs be fixed for taxation. Before the application could be determined, the applicant filed an application dated September 19, 2018 seeking to vacate and set aside the decree issued on August 2, 2018 and stay of further proceedings pending the hearing and determination of Nyeri Civil Appeal No 15 of 2018 Geoffrey Kirundi vs Dispute Resolution Board of KTDA and KTDA HL. The court dismissed the application and held that an order of stay for costs was incapable of being stayed. The application dated August 10, 2018 was dismissed on the premise that once the certificate of costs is issued the court becomes functus officio. The deputy registrar held that the taxing officer’s mandate ends after taxation and signing of the certificate of costs.

33. The applicant further filed an application dated November 27, 2019 seeking for orders to set aside the taxation proceedings dated July 13, 2018, the certificate of costs and the decision of the taxing master. The applicant urged the court to have the bill of costs remitted to the Taxing Master for taxation. The court dismissed the application and held that instead of filing an application to set aside, the applicant ought to have filed a reference. On perusal of the applications including the one before the court, the main bone of contention is the taxation proceedings of July 13, 2018. All the applications are based on the grounds that the applicant did not attend taxation because of an inadvertent mis-diarization and the fact they the taxing master proceeded to tax the bill of costs without giving the applicant a chance to be heard. Thus it is evident that the issues raised in the earlier applications substantially touch on the taxation proceedings dated July 13, 2018 despite the fact that the prayers have been reframed differently. In this application the prayers are that the proceedings of July 13, 2018 are set aside or stayed to allow the applicant file a notice of objection and reference. This issue has been determined by a competent courts on three occasions, on January 21, 2019, November 13, 2019 and January 22, 2022. Therefore my view is that the issues raised in the previous applications are similar to the issues in this application and that the parties are the same.

34. It is noted that the applicant filed an appeal in the Court of Appeal being Civil Appeal No 15 of 2018 against the decision of this court dismissing the judicial review proceedings. This court in its ruling delivered on January 21, 2019, held that the court could not be asked to deal with the issue of awarding costs when the said issues were pending in the Court of Appeal. It is thus clear that the issues were determined by the taxing master and also by this court both of which are courts of competent jurisdiction. I find that this application is therefore res judicata under the provisions of Section 7 of the Civil Procedure Act.

35. The application dated June 11, 2021 stands dismissed with costs to the respondents.

36. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 1ST DAY OF DECEMBER, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 1ST DAY OF DECEMBER, 2022