[2017] KEHC 4541 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC CIVIL APPLICATION NO. 23 OF 2016

MOMANYI & ASSOCIATES ADVOCATES..................APPLICANT

- VERSUS -

NAIROBI CITY COUNTY............................................RESPONDENT

RULING

1. By a Chamber Summons dated 23rd December, 2016, the applicant seeks the following orders:

1. That this Hon Court be pleased to extend time within which to file a reference to the High Court arising from the taxing master Hon E.W. MBURU decision made on 3rd November, 2016.

2. That by consent of the parties this matter be referred to the opinion of the Hon. Judge of the High Court for his opinion on the effect of agreed fees between client and Advocates signified in by the letter of client dated 19th August, 2014.

3. That costs of this application be provided for.

2. According to the applicants, they received instructions on 19/09/2012 to defend the Respondent in petition No 315 of 2012 and they signified acceptance of the said instructions vide their letter of 19th September, 2012.

3. They averred that on 21st August, 2013 they raised a fee note of Kenya Shillings Nine Hundred and Sixty Eight Million (Kshs 968,000,000) but following negotiations the Respondent voluntary agreed on 19th August 2014 to pay a reduced fee of Kenya Shillings Eight Hundred and Eighteen Million One Hundred and Seventy Five Thousand six Hundred and Fourteen (Kshs 818,175,614. 00) which the applicants accepted thus sealed the contract.

4. It was averred that in part payment and part performance of the said contract the Respondent released to the applicant an initial payment of Kenya Shillings Sixty Million (Kshs 60,000,000. 00).

5. The applicants therefore prayed that this Court allows this matter to be placed before a judge for his opinion whether a taxing master can overlook agreed fees between advocate and client.

6. I have considered the affidavit and submissions on record. The decision of the taxing master was delivered on 3rd November, 2016. By an application dated 16th November, 2016 filed on 18th November, 2016, the applicants sought orders for review of the taxing master’s decision and for setting aside the same. By a Notice of withdrawal dated 23rd December, 2016, the applicants intimated their intention to withdraw the said application and the said notice was eventually endorsed as an order of the Court on 6th February, 2017.

7. That this Court has the jurisdiction to extend time for filing a reference is not in doubt. This position was reaffirmed in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 where it was held the court has unfettered discretion under sub paragraph (4) of rule 11 of the Advocates Remuneration Order to extend time prescribed by sub paragraph (1) and (2) of the same rule within which to give notice of objection to the decision on taxation and to file a reference to a Judge in respect of such taxation. In fact that Court appreciated that the law is not that the High Court is only vested with inherent power and jurisdiction to prevent abuse of the Court process or to further the ends of justice only in matters falling within the Civil Procedure Actand Rules but that the Court is clothed with inherent powers and jurisdiction all the time in all causes irrespective of legislative or other juridical foundations of any such cause or matter before it as the juridical root of the Court’s inherent power does not lie in section 3A of the Civil Procedure Act but in the nature of the High Court as a Superior Court of judicature.

8. In the said case the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

9. In this case there are simply no reasons in the supporting affidavit for the delay in filing the reference. Although there is an attempt in the submissions to justify the delay, the reasons ought to have been deposed to in the supporting affidavit.

10. In the absence of reasons there is no material on the basis of which I can extend the time.

11. Accordingly, this Motion fails and is dismissed with no order as to costs.

Dated at Nairobi this 11th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Nyakoe for the applicant

Mr Mose for the Respondent

CA Mwangi