[2022] KEHC 15333 (KLR)

Makhecha & Gitonga Advocates v Standard Group PLC (Miscellaneous Civil Application E079 of 2021) [2022] KEHC 15333 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15333 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E079 of 2021

JK Sergon, J

November 11, 2022

Between

Makhecha & Gitonga Advocates

Advocate

and

Standard Group PLC

Client

Ruling

1. The advocate/applicant filed the Chamber Summons Reference dated September 23, 2021. The Summons is supported by the grounds set out on its body and the facts stated in the affidavit of advocate James Gathuri and sought for the following orders:i.That the taxation be varied or set aside.ii.That cost of the Reference be borne by the client/respondent.

2. To oppose the Reference, the client/respondent put in the grounds of opposition dated December 14, 2021 raising the following grounds:a.The application is irregular, misconceived, incompetent, bad in law and is an abuse of the process of court.b.The application has been filed out of time contrary to the express provisions of Paragraphs 11(1), (2) and (4) of the Advocates (Regulations) Remuneration Orderand without leave of the court.c.The application is made in bad faith and is grossly incompetent since there has been an inordinate and unexplained delay in making the application thus the applicant is undeserving of the orders sought.d.The application as filed and the prayers sought therein are unmeritorious and ought to be dismissed with costs to the respondent.

3. The applicant retorted with the further affidavit sworn by Wangechi Mwangi on February 23, 2022.

4. At the interparties hearing of the Reference, the parties’ advocates presented brief oral arguments, with the applicant also putting in written submissions.

5. I have considered the grounds set out on the body of the Reference; the facts deponed in the affidavits filed in support thereof; the Grounds of Opposition; the written submissions by the applicant and the oral arguments made by counsel for both parties.

6. In the present matter, the applicant filed the Advocate-Client Bill of Costs dated July 14, 2020 and sought for the sum of Kshs.721,582. 84 arising out of a defamation claim in which the applicant acted for the respondent as a defendant at all material times.

7. The Bill of Costs was placed before the taxing officer and taxed in the sum of Kshs.275,439/ giving rise to a certificate of taxation.

8. Returning to the Reference, before I consider its merits, I will address a concern which was raised by the respondent in the grounds of opposition; which is whether the Reference ought to be struck out for being time barred.

9. In oral arguments, Ogutu counsel for the respondent relied on the Grounds of Opposition whose grounds have been set out hereinabove.

10. In reply, Wangechi Mwangi states that the Reference was filed within the stipulated timelines since the applicant’s advocate only received the certificate of taxation and the ruling and reasons for taxation on September 8, 2021 and September 14, 2021 respectively.

11. Paragraph 11 of the Advocates Remuneration Order provides for the procedure and timelines for objecting to a decision on taxation and on the filing of a Reference, as seen hereunder:“(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.

12. Upon my study of the record, I note that the ruling containing the reasons for taxation was delivered on August 5, 2021 in the presence of both advocates for the parties herein.

13. Going by the record, while it is apparent that the applicant wrote to the Deputy Registrar indicating its intention to object to the items in the taxation ruling, it is worth mentioning that the reasons thereof were contained in the ruling and hence there was no need to apply for the same.

14. From the legal provisions cited above, the applicant ought to have filed its Reference within 14 days from the date of the ruling and reasons, but it did not comply. There is also nothing to indicate that the applicant first sought and obtained leave of the court in order to file the Reference out of time.

15. I am therefore satisfied that the Reference is time barred and there is no reason for me to consider its merits.

16. Consequently, the Chamber Summons Reference dated September 23, 2021 is hereby struck out with no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………………….J.K. SERGONJUDGEIn the presence of:……………………………. for the Advocate/Applicant……………………………. for the Client/Respondent