[2022] KEHC 15181 (KLR)

Mugedi Karigi & Company Advocates v Jason (Miscellaneous Application E381 of 2021) [2022] KEHC 15181 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15181 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Miscellaneous Application E381 of 2021

A Mabeya, J

November 11, 2022

Between

Mugedi Karigi & Company Advocates

Advocate

and

Francis Ngigi Jason

Client

Ruling

1. Before Court are two applications for determination. The first application is dated 17/9/2021 by the Advocate. It was brought under Section 1A, 1B, 3A of the Civil Procedure Act, Section 51(2) of the Advocates Act, and Order 51 Rule 1 of the Civil Procedure Rules.

2. The application sought orders that judgment be entered in favor of the advocate for taxed costs of Kshs. 308,250/=. The grounds for the application were set out on the face of the Motion and in the supporting affidavit of Morris M. Karigi on 17/9/2021. It was contended that the client owed the advocate Kshs. 308,250/= being taxed costs, but had failed to pay the amount despite demands.

3. The client filed grounds of opposition dated November 28, 2021. He opposed the application on the ground that he had filed a Reference and therefore the application was premature and that this court lacked jurisdiction to hear the application.

4. The client filed the second application which was brought by way of Chamber Summons dated 1/10/2021. It was brought under Order 11 of the Advocates (Remuneration) Order.

5. It sought orders that the ruling of the taxing officer Hon. Elizabeth Tanui dated 16/8/2021 be set aside. It also sought for enlargement of time for the filing the application.

6. The grounds for the application were set out on the face of it and in his supporting affidavit sworn on 5/10/2021. It was contended that the taxing officer did not avail the ruling till 18/9/2021 when it was posted on the e-filing portal. That the client’s advocate only became aware of it on 22/9/2021 when they checked the portal.

7. It was also contended that the taxing officer lacked jurisdiction to determine the Advocate-Client Bill of Costs dated 11/5/2021 under schedule 7 of the Advocates Remuneration Order(ARO).

8. That the taxing master misdirected herself by stating that the minimum fees under schedule 7 of the Advocates Remuneration Order 2006 was Kshs. 96,000/= and further misdirected herself by finding that the advocate was entitled to ½ of the instruction fees under schedule 7 of the ARO.

9. That the taxing master also misdirected herself by awarding a fee of Kshs. 32,825/= without proof of such payment and that the amounts awarded in respect of item 1, 2 and 48 of the Bill of Costs were erroneous.

10. The Client further contended that he had filed a Notice of Objection to the decision of the taxing officer under Rule 11 but the advocate had moved court to obtain a decree subject to the ruling herein. That in the premises, it was in the interest of justice that the application be allowed.

11. The advocate opposed that application vide the replying affidavit sworn by Moris M. Karigi on 13/10/2021. He contended that there had been unreasonable delay in bringing the application as it was filed out of the 14 days provided for in the rules. That there was no room for enlargement of time. That the client never expressed his dissatisfaction with the subject ruling. That the issues raised in the application were farfetched and intended to prolong litigation.

12. The applications were canvased by way of written submissions. The advocates’ submissions were dated 1/12/2021 while those of the respondent were dated November 28, 2021. This court has considered those submissions as well as the record.

13. The issues for determination are;1. Whether the taxing officer had jurisdiction to entertain the bill of costs and consequently whether this court has jurisdiction to entertain the first application dated 17/9/2021. 2.Whether the order to enlarge time to bring the second application dated 1/10/2021 ought to issue.

3. Whether the taxing officer’s ruling dated 16/8/2021 ought to be set aside.

14. On the first issue, the client contended that the subject matter of the suit related to land. That in the premises the correct court to hear and determine the matter was the Environment and Land Court. That since the matter was instituted in the Chief Magistrate’s Court, the correct taxing officer should have been the Chief Magistrate and not the High Court deputy registrar.

15. On the other hand, the advocate submitted that taxation of an Advocate-Client bill of costs is within the special jurisdiction reserved to the taxing officer by the ARO. In the premises, it was not correct that the taxation was within the preserve of the Magistrate’s Court.

16. For any court to entertain any matter it must have jurisdiction to do so since jurisdiction (See Lilian “S” Vs. Caltex Oil Kenya Ltd (1989) KLR 1. Paragraph 10 of the Advocates (Remuneration) order 2009 provides: -"The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or Deputy Registrar of the High Court or, in the absence of a Registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 of the order the Taxing Officer shall be the Registrar of trade marks or any Deputy or Assistant Registrar of trade marks."

18. It is clear from the foregoing that it is the deputy registrar of the High Court who has jurisdiction under the ARO to tax bills of costs. This court thus rejects the client’s submission that the taxing officer lacked jurisdiction to determine the Bill of Costs herein.

19. As regards this court’s jurisdiction, the ARO vests jurisdiction on the High Court to deal with a taxation related matter under paragraph 11 (1) (2) (3) of the Advocates (Remuneration) Order in which it is provided: -“Paragraph 11 (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 this 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."

20. Undoubtedly, this court is vested with jurisdiction to determine challenges raised against a taxing master’s decision. The client’s objection on jurisdiction therefore fails.

21. On the second issue of whether time should be enlarged, the client did not submit on it. In his application however, the client contended that the taxing officer failed to avail the ruling until 18/9/2021 when it was posted on the e-filing system. That even then, his advocates only became aware of it on 22/9/2021. There was however no explanation why it took the client another 8 days before filing the application on 1/10/2021.

22. On the other hand, the advocate submitted that no reference had been filed by the client and that the application dated 1/10/2021 was therefore a non-starter having been filed out of the 14 days statutory period. That this was in contravention of section 51 of the Advocate’s Act, and Rule 11 of the ARO.

23. It was further submitted that the client had not demonstrated how he would suffer if orders for stay of the ruling were not granted.

24. From the record, the Court is not satisfied that the client sufficiently explained why the application was brought 32 days out of time. Even if the explanation given, that the client only became aware of the ruling when his advocates checked the e-filing system on 22/9/2021, there was no explanation why there was a further delay of a further 8 days to bring the application. Further, there is no evidence to show that the client or his advocate made any effort to procure the ruling earlier.

25. In Republic–vs- Kenyatta University & Another Ex Parte Wellington Kihato Wamburu [2018]eKLR, the court held: -“… The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to disregard the delay and admit the reference out of time. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.However, it is necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretion jurisdiction vested in the court. If sufficient cause is not proved nothing further has to be done; the application for excusing delay has to be dismissed on that ground alone.”

26. In Wiga Motor Limited –vs- Hon. Dalmas Otieno Anyango [2015]eKLR, it was observed that: -“The time limits in Rule 11 of the Advocates Remuneration Order have been put there for a reason. Failure to adhere to the said time lines would mean that the application would be rendered incompetent in the first instance.”

27. In the present case, the Court finds that there having been no satisfactory explanation, the delay was inordinate and enlargement of time is declined.

28. Even if time was enlarged and the reference admitted for hearing, it is doubtful if it would have succeeded. As a general rule, the High Court will not interfere with the decision of a Taxing Officer unless there exists an error in law or in principle.

29. In Kipkorir Titoo & Kiara Advocates –vs- Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held: -“On reference to a judge from the taxation by the taxing officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs.”

30. In the present case, on instruction fees, the client submitted that under Schedule 7, the instruction fees is Kshs. 65,000/= and not the awarded amount of Kshs. 92,000/=. That the taxing officer failed to give reason why she enhanced the amount.

31. The record shows that the taxing officer applied Schedule 7 of the ARO 2006 and found that the instruction fee to be Kshs. 92,000/=. The taxing officer taxed off Kshs. 108,000/=. The reasoning under this item is found at clause 6. This court sees no error in principle in assessing the instruction fees.

32. In Arthur v Nyeri Electricity Undertaking [1961] E.A, it was held that: -“Where there has been an error in principle the court will interfere but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the Court will interfere only in exceptional cases.”

33. In the present case, no exceptional circumstances have been demonstrated to exist. In the end, this courts finds no merit in the application dated 1/10/2021 and the same is dismissed with costs to the advocate.

34. In the circumstances, there is no justifiable reason for the Court to deny the orders sought in the application dated 17/9/2021. The same is allowed as prayed with costs.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. A. MABEYA, FCIArbJUDGE