[2022] KEHC 16239 (KLR)

Maingi v Wadhier & Juma (Suing as Legal Representative on behalf of the Estate of Angeline Aoko Juma - Deceased) (Miscellaneous Reference Application E031 of 2022) [2022] KEHC 16239 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16239 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Reference Application E031 of 2022

RE Aburili, J

December 14, 2022

Between

David Maingi

Applicant

and

Juma Wadhier & Daniel Omondi Juma (Suing as Legal Representative on behalf of the Estate of Angeline Aoko Juma - Deceased)

Respondent

Ruling

1. The facts of this Reference originated by way of Chamber summons dated 21/10/2022 are that on 23/9/2022, the trial court at Ukwala (Hon. C.I. Agutu, SRM) taxed/assessed the Respondent/Plaintiff party and party Bill of costs dated 12/5/2022 in Ukwala SRM CC 150/2018 as drawn, despite the applicant/ Defendant’s objection filed by way of submissions objecting to specific items drawn in the bill of costs.

2. The applicant /Defendant was dissatisfied with the taxation order, and wrote to court vide letter dated 23/11/2022 and received in court on 28/9/2022 asking the court under Section 11(1) of the Advocates Remuneration Order, to give reasons for the taxation on the specific items under challenge.

3. No such reason are annexed to the affidavit in support of the Chamber Summons dated 21/10/2022 but on 1/11/2022, this chamber summons was filed seeking orders for stay of execution of the taxed party and party costs in the lower court and urging this court to set aside the decision of the trial Magistrate on 23/9/2022 in the taxation of certain specified items in the party and party bill of costs dated 12/5/2022.

4. A further prayer for costs of this application was made.

5. The applicant in the grounds and supporting affidavit has attacked specific items 3, 5, 7, 11, 12, 14, 15, 16, 17, 18, 19; 20; 21, 25 which I need not reproduce as I will consider the same in this ruling. The Respondent apposed this application by filing the Grounds of opposition dated 3/11/2022 and Relpying affidavit sworn by M. Francis Omondi Advocate for the Respondent on 7/11/2022.

6. The Respondent’s counsel deposes in contention that the application in prayer is superfluous and a duplication of a similar application for stay and an order for stay of execution which was issued by the lower court, pending the hearing and determination of Siaya HCCA No. 6/2022.

7. That as a preliminary issue, this court is bereft of any jurisdiction to entertain this application and or that Prayer 3 of the application is premature. Counsel then gave a brief history of the suit in the lower court and defended all the items being challenged by the applicant maintaining that the Respondent was entitled to the same and contended that the applicant did not raise the issues arising now during the assessment before the trial court. He concluded that this application is an abuse of the court process and is without merit.

8. The applicant then filed a further affidavit sworn by Everline Ogato advocate on an undated date but filed in court on 11/11/2022 responding to the Replying affidavit sworn by Mr. Omondi advocate and reiterating the contents of the supporting affidavit. It was deposed that the applicant’s application for stay of execution was due for interpartes hearing on 24/11/2022 hence it was not a duplication of the prayer for stay herein.

9. It was further deposed that this court has jurisdiction to hear this Chamber Summons challenging the assessment in the lower court.

10. That albeit an appeal challenging the judgment in the lower court was filed, but that this is a contestation on the costs assessed by the lower court, which are two separate items that the parties withdrew by consent the application dated 5/5/2022 with no orders as to costs; that the applicant of filed submissions in position to the bill of costs but that the trial court ignored those submissions entirely.

11. That there was no proof of service costs demonstrated in the lower court. The application was canvassed by way of written submission with the applicant’s counsel filing their submissions dated 14/11/2022 received in court on 11/11/2022 while the Respondent’s counsel filed submissions dated 16/11/2022 on 17/11/2022.

12. Those submissions which I have perused, mirror exactly what the parties have advanced in their respective pleadings and affidavits hence it would be a waste of judicial time to reproduce them here, save that I have considered them in this ruling and in the final determination of the application.

Analysis and Determination 13. Having considered the application, grounds and supporting affidavit and further affidavit as well as the grounds of opposition and Replying affidavit together with the respective parties’ rival submissions as filed, in my humble view, the issues for determination in this application are;i.Whether this court has jurisdiction to hear and determine the application as filed.ii.Whether the application is prematureiii.Whether this Reference is competently before this courtiv.Whether the challenge to the respective items in the bill of costs as taxed is meritedv.Whether the prayer for stay is merited.vi.What orders should this court make.vii.Who should bear costs of the application.

14. On the first issue of whether this court has jurisdiction to hear and determine the application as filed, the Respondent’s counsel, Mr. Omondi deposed and submitted in contention that a taxing officer is a registrar or district or Deputy Registrar of the High Court or such officer as the Chief Justice may appoint in writing and that the SRM in taxing the costs under Rule 9C of the Advocates Remuneration Order was not a taxing officer hence References under paragraph 11 are limited to taxation in the High Court cases be they Advocate/ client or Party and Party bill of costs.

15. On the part of the applicant, it was averred, deposed and submitted that this court has jurisdiction to consider this Reference as stipulated in paragraph 11 of the Advocates Remuneration Order as reproduced.

16. It is established law that where the issue of jurisdiction of the court is raised, it must be determined first before the merit. This is because jurisdiction is everything without which, a court of law has no power to make one more step. It would down its tools in respect of matter before it the moment it holds the opinion that it is without jurisdiction (see Owners of Motor Vessels ‘Lilian S’ v Caltex Oil (K) Ltd[1989] KLR I).

17. The question being raised on jurisdiction of this court is whether this court can hear a reference arising from an assessment of costs between party and party in the subordinate court, with the Respondent’s counsel arguing that this court only hears References in matters Advocate/Client and in party and party bills of costs before the High Court, not the subordinate court.

18. In Donholm Rahisi stores (firm) v E.A Portland Cement Ltd [2005] eKLR, H. Waweru J stated as follows:“Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing officer by the Advocates Remuneration Order. The court will not be drawn into the arena of taxation except by way of a reference (from a decision on taxation) made under Rule 11 of the Advocate Remuneration Order. The present application is not a reference….”

19. Without belaboring so much into the question of whether this court has jurisdiction to hear a Reference from party and party bill of costs assessed in the lower court, I find and hold that that jurisdiction exists by virtue of paragraph 11 (1) of the Advocates Remuneration Order which clearly spells out that jurisdiction. (See also my detailed analysis and findings in Nyamogo and Nyamogo Advocates v. Pan African Insurance Co. Ltd and Another (2016) eKLR.

20. In addition, although Rule 10 of the Advocates Remuneration Order cited by the Respondent’s counsel defines who a taxing officer is, courts have over time held that the use of terms assessment or taxation are immaterial.

21. InBenard Gichohi Njira v Kanini Njira Kathendu & Another [2015]eKLR, the court held that:“A magistrate is allowed and or mandated by law to assess or tax costs payable in a given case. The words or terminology used whether “assess” or “tax” is immaterial in my view. The bottom line is to determine the total amount of costs payable. The fact that a Magistrate has taxed or used the terminology “taxation” to assess or determine costs payable is not fatal if the bill presented before the court is in compliance with the requirement of Schedule VII of the Advocates Remuneration Order. To make a different finding in my view would be unconstitutional in view of Article 159(2)(d) of the Constitution.”

22. Whereas there is no specific provision for challenging assessment of costs made by the Magistrate’s courts, the High court has in many cases held that it has jurisdiction to intervene. See Donholm Rahisi stores (firm) v E.A Portland Cement Ltd (supra). See also Nyakundi J. in Vincent Kibiwot Rono v Abraham Kiprotich Chebet & Another [2022]eKLR citing the above decisions and holding that:“Having established that taxation and assessment mean basically the same thing, it is therefore in order that the dispute as to the assessment is brought before this court by way of references. In the premises, this court has jurisdiction to entertain this matter.”

23. I find and hold that the above is the correct position regarding challenging of a decision in the subordinate court on party and party costs.

24. On the second issue of whether this application is premature, the Respondent contended that there is no decision that this court is called upon to review or revise and that this court is being asked to become a taxing officer because it is admitted in Paragraph 9 of the ground on the face of the application and Paragraph 5 of the supporting affidavit that the Ruling (and therefore the reasons has not been availed to the applicant as stipulated Paragraph 11 of the Advocates Remuneration Order.

25. Paragraph 11 of the Advocates Remuneration Order provides that:“(1)should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the objects.(2)The taxing officer shall forthwith record and forward to the objector and reasons for his decision on those items and the objector may within 14 days from the receipt of the reasons apply to a judge of the reasons apply to a judge be 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 subsection (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) far 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.”

26. In the instant Reference, it is not in dispute that the assessment of the Respondent’s party and party costs was done on 23/9/2022. The applicants herein wrote to the Executive Officer copied to the SRM and the Respondent’s counsel on 23/9/2022 but received in court on 28/9/2022 notifying them and seeking for reasons that informed the Ruling on taxation as stipulated in Paragraph 11 (2) of the Advocates Remuneration Order; and also specified the items that he wished to object.

27. However, no reasons were given by the magistrate. It should nonetheless be noted the applicant has not filed before court the Ruling on taxation for this court to establish whether that ruling contains the reasons for taxation.

28. In other words, rulings for taxation ought to contain reasons for taxing or assessing the items as presented. It follows that where there are reasons for taxation, the taxing officer need not give any further reasons upon being requested by a party objecting to the items in the taxed/assessed bill of costs.

29. What that also means is that the filing of a reference is not dependent on the availability of reasons or decision for taxation other than the reasons contained in the ruling for taxation and that therefore the failure of the magistrate to give those reasons is not fatal to the Reference as the same would be more or less a duplication of the Ruling on taxation (see Benard Gichohi Njira v. Kanini Njira Kathendu & Another (supra).

30. To that extent only, I find that the Reference is not premature. I am fortified on this point by the decision in Ahmed Nassir v. National Bank of Kenya Ltd [2006]E.A. where the court held that:“Although Rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the Hon. Taxing Officer should so within 14 days, after the said decision and thereafter file his reference within 14 days from the date of receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered Ruling, there is no need to seek for further reasons simply because of the unfortunate wording of Sub Rule (2) of the Advocates Remuneration Order demands so. The said Rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered Ruling.”

31. From the above holding which I agree with, the decision referred to in Paragraph 11 of the Advocates Remuneration Order is the decision of the taxation of the bill of costs. The reasons could be those contained in the decision or those given following a request under paragraph 11(2) of the Advocates Remuneration Order where reasons are contained in the ruling or decision for taxation - then it is not expected that the court should or must give further reasons for the decision / ruling. The only question that I must pose is whether this Reference was filed within the timelines stipulated under paragraph 11 of the Advocates Remuneration Order.

32. The Ruling on taxation was made on 23/9/2022. The objection and asking for the reasons was filed on 28/9/2022. However, the Reference herein was filed on 1/11/2022. The question therefore is whether this Reference is competent before this Court.

33. Even assuming that the taxing officer gave reasons within 14 days from 28/9/2022, that would be by 12/10/2022. The applicant was then expected to have filed his Reference within 14 days of receipt of the reasons. That would take us to 26/10/2022.

34. The Reference herein was filed on 1/11/2022 which was way outside the statutory stipulated period for filing of a Reference under Paragraph 11 of the Advocates Remuneration Order. Under Paragraph 11(4) of the Advocates Remuneration Order, “the High court shall have power in its discretion by order to enlarge the time fixed by sub paragraph (1) or sub paragraph (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 clean 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.”

35. The applicant’s counsel have not demonstrated before this court that they filed the Reference within the timeliness stipulated in Paragraph 11 of the Advocates Remuneration Order.

36. Neither have they demonstrated that they sought and obtained leave of this court to enlarge the time that had already elapsed as at the time that they were filing the Reference.

37. Although the Respondent’s counsel did not raise this issue, it is an issue that goes to the core and root of this Reference. It goes to the jurisdiction of the court to entertain stale claims.

38. It is so fundamental an issue that this court would not have jurisdiction to determine the next question if it finds as I hereby do, that the Reference herein was not filed within the stipulated timelines under the relevant law.

39. It is trite law that for pleadings filed out of time without leave of court, such filing renders the document so filed a nullity and of no legal consequence.

40. In this case, I find that the Reference is nullity and of no legal consequence as it was filed out of time and without leave of court extending time. It is hereby expunged from the record with an order striking it out. Each party to bear their own costs

41. File closed. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 14TH DAY OF DECEMBER, 2022R.E. ABURILIJUDGE