[2017] KEHC 2413 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC. APPL. NO. 356 OF 2015

M/S AMINGA, OPIYO & MASESE ADVOCATES.....ADVOCATE/RESPONDENT

-V E R S U S –

HERBERT OCHOLLA OJWANG

DENICE OTIENO OUNDA KOMOLA

INVESTMENT LTD................................................................CLIENT/APPLICANTS

RULING

1. Herbert Ocholla Ojwang, Denice Otieno Ounda and Komola Investments the clients/applicants herein, took out the notice of motion dated 17/10/2016 in which they sought for the following orders:

1. That this application be certified urgent and service thereof be dispensed with in the first instance.

2. This honourable court be pleased to enlarge time to file this application in terms of prayer no. 2.

3. The honourable court be pleased to set aside the taxing officers’ decision delivered on 17th August 2016.

4. The costs of this application be provided for.

2) The motion is supported by the affidavit of Nancy O. Akinyi Ouko. When served, the advocate/respondent filed his grounds of opposition to oppose the application. When the motion came up for inter partes hearing, learned counsels appearing in this matter recorded a consent order to have the motion disposed of by written submissions.

3) I have considered the grounds set out on the face of the motion plus the facts deponed in the applicants’ affidavit filed in support of the motion and the respondents grounds of opposition. I have also considered the respondent’s written submissions. The applicants’ had not filed theirs at the time of writing this ruling.

4) The applicants aver that the advocates bill of costs was heard ex parte (in the absence of the applicants herein). They sought for an adjournment in the taxation matter to be able to peruse the court file from which the taxation arose and in order to verify the items in the bill of costs and to respond thereto appropriately. It is argued that the parent file could not be traced. The court then ordered that the parent file once traced, be availed before the Deputy Registrar for mention and to confirm its availability. The parties were also directed to file written submissions in this matter which the applicants herein did not comply with, hence the exparte ruling. The main reason given by the applicants for non compliance by the applicants herein was unavailability of the parent file to enable perusal in order to verify the items in the bill of costs.

5) The court went ahead to give a ruling date on this matter on notice to the parties which notice the applicants say they did not receive. The applicants are yet to get a copy of the ruling despite the letter written to the deputy registrar. With this background in mind, the applicants aver that they continue to suffer prejudice, because the ruling was delivered against them without their knowledge and without an opportunity to be heard. More so, that they object to certain items in the Bill of Costs for which they were never afforded an opportunity to be heard.

6) The respondent on the other hand is saying that the applicants’ application is untenable in law as the same was filed in court out of time and without leave of the court as required. The taxing master gave both parties a chance to file written submissions before taxing the Bill of Costs, which was not done by the applicants herein and therefore, the applicants should not blame the court for the exparte ruling. Further to this is, the respondent argues that the motion is without merit, the applicant not having proved that the taxing master erred in principle in his ruling delivered on 17th August 2016. Lastly, the respondent states that the mandatory provisions in bringing an application to set aside the taxing master’s decision has not been complied with. Therefore, there is inordinate and inexcusable delay by the applicants in bringing this motion.

7) From the fore going, the applicants have asked this court for two orders: First, to set aside the taxing officer’s decision delivered on 17th August 2016 and secondly, to enlarge time within which the applicant can file its objection to the decision of the taxing officer.

8) The provisions of paragraph 11 of the Advocates (Remuneration) Order provides interalia:

“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 14 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.

9) It’s clear from the record that the decision on taxation was delivered on 17th August 2016 and the applicants motion was filed on 18th October, 2016. This is outside the statutory period of 14 days required for a party who intends to object to the decision of the taxing officer is required to file his objection.

10) This delay has been explained by the applicants. The applicant aver that they were not aware of the ruling until the 26th of August, 2016 when she visited the Deputy Registrar’s chambers to inquire about the same. The applicants were informed that the ruling had been delivered on the 17th of August 2016 by which time they were time-barred to challenge the decision on taxation. The applicant then filed the motion on 18th October 2016. I think this explanation is excusable in the circumstance.

11) The court has the discretion to enlarge time to impugn a decision on taxation paragraph 11 (4) of the Advocates (Remuneration) order. The above mentioned provision provides as follows:

“The High Court shall have power in is discretion to enlarge the time fixed by sub paragraph (1) or (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 clear days notice in writing or as the court may be so made notwithstanding that the time sought to be extended has expired.”

12) The procedure provides that the applicant should take out chamber summons to seek courts’ indulgence as it relates to enlargement of time. Despite the applicant’s technicality in taking out the notice of motion as opposed to a chamber summons and given court discretion in this matter, I think it’s fair to allow the applicants prayer. the applicant is granted leave of 10 days to file an objection to the taxed bill.

13) The application to set aside the advocates/client taxed bill is found to be premature. I decline to grant prayer 3 of the notice of motion.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

.....................................for the Applicant

.................................... for the Respondent