[2022] KEHC 14056 (KLR)

Muiruri & Wachira Advocates v County Government of Nyandarua (Miscellaneous Cause E015 of 2021) [2022] KEHC 14056 (KLR) (17 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14056 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Miscellaneous Cause E015 of 2021

CM Kariuki, J

October 17, 2022

Between

Muiruri & Wachira Advocates

Advocate

and

County Government of Nyandarua

Client

Ruling

1. This a Ruling for the Notice of Motion dated February 11, 2022 and the Chamber Summons dated March 23, 2022.

2. The Notice of Motion filed by the Advocate herein, sought the following prayers: -1. That the honourable court be pleased to enter judgment for the Applicant against the Respondent for the sum of Kenyan Shillings Six Million, Eighty-Three Thousand, Seven Hundred and Sixty-Five Shillings (6,083,765/=) as it appears in the certificate of taxation December 21, 2021. 2.That the Respondent do pay to the Applicant interest of the certified costs at the rate of 14% per annum from May 21, 2021 when the bill of cost was served upon the Respondent until payment in full.3. That the costs of this application be assessed at kshs 10,000/= payable by the Respondent.

3. The Chamber Summons dated March 23, 2022, filed by the Client sought the following prayers: -i.Spentii.Spentiii.That the honourable court do and hereby grants extension of time to the Client/Applicant to request for reasons under Order 11 (1) of the Advocates (Remuneration) Order, 1962iv.That the honourable court do and hereby grant extension of time to the Client/Applicant to file a reference to the ruling of taxation of the bill of costs dated April 20, 2021 by the Taxing Master, Hon. Vincent Kiplagat, DR, delivered on December 9, 2021. v.That alternatively, the Client/ Applicant be allowed to file a reference without requesting for reasons and rely on the reasons stated in the ruling dated December 9, 2021.

4. From the face of the Chamber Summons and the supporting affidavit, it is impleaded that the honourable Deputy Registrar (hereinafter the Taxing Master) erred in facts and in law and thus arrived at an erroneous conclusion culminating in the ruling now subject of these proceedings.

Client/Applicant Submissions 5. The Client/ Applicant submitted that the impugned ruling was delivered on December 9, 2021 was delivered virtually in the absence of the Client’s Advocate and/or representative. That there is no implication of the address of whether the Client had been served and or why the Client’s representative was absent and that the ruling notice was not served on it as is a requirement.

6. The Client contested that no ruling notice was served upon it and if the said notice was served through email, they did not receive it. It was stated that the county attorney handling the matter left the country and as she was mostly using her personal email address much of the communication went to her.

7. It was the Client’s submission that without the aforementioned knowledge, they were caught up by time and that had the Client been aware, both the request for reasons and the reference would have been timeously lodged.

8. The Client opposed the Taxing Master’s observation in the impugned ruling that the Respondent in the bill did not file a response and that the said bill was unopposed. The Client stated that they filed a response in the name of written submissions dated and filed on July 6, 2021. (See annexure JM 1a of the supporting affidavit of Joseph Mugo)

9. It was submitted that the Taxing Master misapprehended the proceedings, overlooked very fundamental basic of taxation proceedings and thus falling squarely in error by delivering a ruling bearing grossly bloated figure.

10. The Client submitted that in granting the prayer for extension of time under Order 11 (4) of the Advocates (Remuneration) Order, 1962, this court exercisers unfettered discretion and that it would be in the interest of justice that the same be exercised in its favour.

11. Reliance was placed on Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Others[2014] eKLR.

12. It was asserted that the delay of about 3 months has been explained in that the ruling notice was sent to a personal contact of the county attorney who had since left service.

13. Moreover, the Client submitted that the Advocate shall not suffer prejudice if the time for filing reference is extended. It was asserted that they had complied with the directions that 1M kshs be deposited in joint account of Advocates in the matter as security. That the main contention in the intended reference is that kshs 6,083,756= is a manifestly high figure given that the services rendered by the Advocate was defending the Client in a constitutional petition.

14. In addressing the issue of prejudice where government institutions are involved, the case of Republic v Commissioner of Domestic Taxes (Large Tax Payers Office) & Another ex-parte Ukwala Supermarket Limited & 2 Others[2017] eKLR

15. The Client asserted that they had raised triable issued that are worth going to trial. The main grounds include: -1. The taxing officer had erroneously assessed instruction fees as kshs 4,500,000/= contrary to Schedule 6 under the paragraph (1) (j) (ii) on constitutional petitions.2. The taxing officer erroneously ruled that the subject bill of costs was undefended yet the Client had filed and served its written submissions dated July 6, 2021.

16. The Client averred that wrong principles were applied during taxation and that that in itself was a ground for retrial. Reliance was placed onRepublic v Commissioner of Domestic Taxes (Large Tax Payers Office) & Another ex-parte Ukwala Supermarket Limited & 2 Others[supra], Gicharu Kimani & Associates v Wachu Ranch (DA) Company Limited [2019] eKLR.

17. The Client also submitted that the Advocate’s Notice of Motion dated February 11, 2022 seeking judgement of kshs 6,083,765/= against the Client and interest at 14% from May 21, 2021, he asserted that the same ought to be deemed as opposed to on the same grounds as raised in the Client’s Chamber Summons dated March 23, 2022, the supporting affidavit thereto and the submissions herein.

Advocate/Respondent’s Written Submissions;Unavailable at the time of drafting this ruling. 18. According to the replying affidavit dated June 2, 2022 deponed by Samuel Wachira Gichuki where he laid out the circumstances that led up to the applications herein. He deponed that the Client instructed the Advocate herein to appear and represent it in Nyahururu High Court Petition Number 1 of 2018 where the Client was sued as the 9th Respondent which they proceeded to do so until the end of the matter.

19. Thereafter, the Advocate sent its legal fees note to the Client which culminated to various meetings with the Clients but they failed to make good of their claim. After the Client failed to pay the legal fees, the Advocate filed bill of cost dated April 20, 2021 seeking a sum of kshs 9,632,831. 40 as its legal fees. The same was served upon the Respondent’s county attorney together with a notice of taxation for taxation slated on June 8, 2021.

20. The Client then successfully entered appearance and served the Advocate with a memorandum of appearance dated May 31, 2021 with is address of service under Ms Anne Wangechi- Advocate, Office of the Country Attorney; County Government of Nyandarua together with accompanying contact details.

21. The Client later on appeared in court for taxation on June 8, 2021 where she sought more time to file a response and submissions in responded to the bill of cost and the court granted the request and directed the parties dispose of the bill of cost by way of written submissions and fixed the matter for mention to confirm the filing of submissions and for further directions on July 13, 2021.

22. On the aforementioned date the court was not sitting and parties were directed to fix a new date at the registry which was successfully fixed on November 18, 2021. The Client was served with the mention notice by the Advocate but there was no representation on the said date. The matter was filed for ruling on December 9, 2021 and the Advocate served the Client with a ruling notice but there was still no representation by the Client. The court then proceeded to tax the bill of cost at kshs 6,083,765/= and issued a certificate of taxation on December 21, 2021.

23. The Advocate then vide a letter dated December 21, 2021 wrote to the Client and forwarded the certificate of costs both via email and courier services seeking for its settlement and which request the Client ignored, neglected and/or refused to honor.

24. Consequently, the Advocate filed the application dated February 11, 2022 in line with Section 51 (2) of the Advocates Act and served it upon the Client which prompted the Client to file the instant application as a counter-reaction. The Advocate averred that the application dated 11th February was served via the impugned emailed address and it successfully reached the Client.

25. The Advocate averred that the Client was aware of the ruling date having being informed by the Advocate and thus failure to attend court for the ruling was deliberate.

26. It was submitted that the court was not bound to rely on the submissions even if they were on record but the contents of the bill as filed and countercheck if the same was drawn to scale.

27. The Advocate averred that all the correspondence and pleadings were sent to the email provided by its Advocate and county attorney and further copied to another of its legal officer. Further the email address countyattorneyoffice@nyandarua.go.ke was also used in service but not solely the county attorney’s email address as alleged by the Client.

28. It was asserted that it is not correct to aver that Anne Wangechi’s personal email was not the correct one for purposes of service and to claim that it was not the Clients Advocate official email address yet the said email address was the one that was provided to the Advocate by the Client for the purpose of service as per the memorandum of appearance dated May 31, 2021.

29. The Advocate asserted that the all the notices were served upon the Client through its said Advocate and County Attorney addresses before December 2021 when she was still its county attorney and the official legal representative, and before the alleged resignation in January 2022 the service was not affected by the alleged resignation.

30. It was deponed that the alleged failure to track the progress of the matter herein and the communication related thereto are therefore not applicable or satisfactory explanation by the Client. That in any event, the Client had another legal officer who was always copied in the correspondences relating to the matter of county attorney was at the material time, fully aware of the matter and all information relating thereto even way before her alleged resignation in January 2022 as she was copied and informed via her email address provided in the memorandum of appearance.

31. The Advocate asserted that strictly without prejudice on the foregoing, on the merit of the reference, the same is not merited and/or has little or no chance of success for the reasons that: -i.The Taxing Master correctly applied himself to the provision of the Advocates Remuneration Order, 2014 and while giving the reasons, equally considered the nature, complexity, volume of the documents filed, time, research and skill applied in the matter handled by the Advocates on behalf of the Client herein.ii.That the Taxing Master correctly applied all the principles in taxation while assessing the instruction fees payable.iii.That the argument that the Taxing Master had no jurisdiction to tax the bills not only strange but avant-garde and an attempt by the Client to obfuscate the issues before the court.iv.That the issue that the Advocate had no locus to sue was not advances before the trial court and by raising it at this stage is reducing the appellate court to a trial court in disguise and making decisions without the benefit of the input of the court of the first instance.v.In the circumstances, these would not be a basis enough for intervention of the court to correct any oversight or clerical error in reference to the ruling.

32. The Advocate asserted that he will suffer prejudice should the application be allowed as the services rendered by the Advocate way back in 2017 and that the Client is hell-bent to delay and/or defeat payment to the Advocate for work done. That the grant of this application will delay the enjoyment of the fruits of the judgement by the Advocate and thus in the best interest of justice that the same be dismissed with cost to the Advocate.

33. In conclusion, the Advocate submitted that the application herein does not meet the principles set out in the case of Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] eKLR

Analysis and Determination. 34. Upon perusal of the application herein and the rival submissions, I am satisfied that the Client has submitted a compelling case to grant their prayer for extension of time under Order 11 (4) of theAdvocates (Remuneration) Order, 1962.

35. The issue of extension of time has been set out by the Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the court categorically stated that:“… Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigants’ legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined.” Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it…”

36. In County Executive of Kisumu vs County Government of Kisumu & 8 others [2017] eKLR it was held that: -“The under-lying principles that a Court should consider in exercise of such discretion:Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;Whether there will be any prejudice suffered by the Respondents ifthe extension is granted;”

37. On good and sufficient cause, I associate with Mativo J sentiments in Wachira Karani v Bildad Wachira [2016] eKLR where it was held that:“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...”

38. Further, In Daphene Parry v Murray Alexander Carson [1963] EA 546, the Court stated thus: -“Though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona fides, is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant.”

39. The legal framework on extension of time is clearly stipulated under Part 1 paragraph 11 of the Advocates Remuneration Order which provides:“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 his objection.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (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) 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 direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”

40. According to the Client the delay of about 3 months has been explained in that the ruling notice was sent to a personal contact of the county attorney who had since left service. It was the Client’s submission that without the aforementioned knowledge, they were caught up by time and that had the Client been aware, both the request for reasons and the reference would have been timeously lodged.

41. However, the Advocate countered the aforementioned assertion and submitted that the all the notices were served upon the Client through its said Advocate and county attorney addresses before December 2021 when she was still its county attorney and the official legal representative, and before the alleged resignation in January 2022 the service was not affected by the alleged resignation.

42. I am persuaded that the Client has satisfactorily explained the sequence of events that led up to failure to receive the ruling notice and consequently attend court for ruling. I will give the Client the benefit of doubt. However, it is important to note that Advocates should take great care to ensure that the addresses of service provided in court are accurate and accessible at all times. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR as was cited by the Applicant, this Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

43. Evidently, the application has been brought in good faith since the Client has shown that he is willing to settle the decretal sum by depositing security of Kshs 1,000,000/= in the joint accounts of Advocates for the performance of the same. I believe that the Advocate shall not suffer prejudice if the time for filing reference is extended.

44. It is my finding the merits of the contemplated action i.e. the intended reference deserves a day in court in the interest of justice as that the main contention in the intended reference is that Kshs 6,083,756/= is a manifestly high figure given that the services rendered by the Advocate was defending the Client in a constitutional petition.

45. In light of the foregoing, I find that the Applicant has established that its failure to file an objection or reference within the prescribed time was not deliberate and was not caused by lack of diligence on its part. I am of the opinion that the Client has satisfactorily explained why the request for reasons and the reference was filed out of time. I am thus satisfied that the Applicant has demonstrated sufficient cause to justify the exercise of the court’s discretion in its favour and is entitled to the orders sought.

46. Bearing in mind the aforementioned determination, the Notice of Motion dated February 11, 2022 is hereby dismissed.Accordingly, I allow the application dated March 24, 2020 in the following terms: -i.That the honourable court do and hereby grant extension of time to the Client/Applicant to request for reasons under Order 11(1) of the Advocates (Remuneration) Order, 1962. ii.That the request be made within the next 14 days from the date of this ruling.iii.That the honourable court do and hereby grant extension of time to the Client/Applicant to file a reference to the ruling of taxation of the bill of costs dated April 20, 2021 by the Taxing Master, Hon Vincent Kiplagat, Deputy Registrar, delivered on December 9, 2021. iv.That the said reference be filed within the next 21 days from the date of this ruling.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 17TH DAY OF OCTOBER, 2022. ………………………………CHARLES KARIUKIJUDGE