[2016] KEHC 8523 (KLR)
The court found that the confusion regarding the date and day of the ruling delivery was caused by the Notice issued by the court itself, which incorrectly stated the day as Wednesday when 20th July 2015 was a Monday. The applicant's reliance on the diary entry reflecting the incorrect date was reasonable in the...
Source-derived case information.
- Citation
- [2016] KEHC 8523 (KLR)
- Parties
- Applicant: Muri Mwaniki & Wamiti Advocates; Respondent: Makomboki Tea Factory Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 341 of 2013
- Procedural Posture
- Miscellaneous Cause / Ruling on Application for Enlargement of Time to File Reference Against Taxing Officer's Decision
- Outcome
- application allowed
- Legal Topics
- Taxation of Costs, Enlargement of Time, Reference to High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muri Mwaniki & Wamiti Advocates
Applicant
Makomboki Tea Factory Company Limited
Respondent
Procedural Posture
Miscellaneous Cause / Ruling on Application for Enlargement of Time to File Reference Against Taxing Officer's Decision
Legal Issues
- 1 Whether the applicant should be granted enlargement of time to file a reference against the decision of the Taxing Officer.
- 2 Whether the confusion in the date of the ruling delivery constituted sufficient cause for the delay.
- 3 Whether the delay in filing the reference was inordinate and inexcusable.
Ratio Decidendi
The court found that the confusion regarding the date and day of the ruling delivery was caused by the Notice issued by the court itself, which incorrectly stated the day as Wednesday when 20th July 2015 was a Monday. The applicant's reliance on the diary entry reflecting the incorrect date was reasonable in the circumstances. The court further held that the delay of 23 days after service of the certificate of taxation was not so inordinate as to be inexcusable. The court concluded that it would be unjust to penalize the applicant for confusion caused by the court and that granting the enlargement of time would not prejudice the respondent, as both parties would have an opportunity to be...
Court Disposition
application allowed
Orders
- Time for filing the Reference from the decision of the Taxing Officer is enlarged by 7 days from the date of this ruling.
- Costs of the application shall be in the cause, in the Reference. If the Reference succeeds, costs to the Applicant; if it fails, costs to the Respondent.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
MISCELLANEOUS CAUSE NO. 341 OF 2013
MURI MWANIKI & WAMITI ADVOCATES……..............ADVOCATES/APPLICANT
VERSUS
MAKOMBOKI TEA FACTORY COMPANY LIMITED...........CLIENT/RESPONDENT
RULING
The application before me is for the enlargement of time for lodging a Notice of Objection to the decision of the Taxing Officer.
The decision was pronounced on 20th July 2015, in the absence of the applicant.
The explanation tendered by the applicant, for its failure to attend court on 20th July 2015 was that its advocates had noted in their diary, the fact that the Ruling was scheduled to be delivered on “Wednesday 20th July 2015?.
Consequently, the applicant went to court on Wednesday 22nd July 2015.
The applicant provided the court with a copy of the advocate’s diary, in which it is shown that this case was scheduled to come up on 22nd July 2015.
In answer to the application, the respondent noted that the confusion on the part of the applicant was due to the confusion between the date and the day, specified on the Notice which the court issued.
I have perused the Notice which is in contention. It is dated 15th July 2015, and was signed by Hon. E. Tanui, the learned Deputy Registrar of the Milimani Commercial & Admiralty Division of the High Court.
The Notice indicated that the parties should take Notice that
“the Ruling in the above matter will be delivered on Wednesday the 20th day of July 2015, at 9. 00 a.m, in Chambers No. 227, 2nd Floor?.
A look at the diary reveals that the 20th day of July 2015 was a Monday; not a Wednesday.
According to the respondent, the practice of advocates is to always go by the dates, not by the days of the week.
The respondent did not provide the court with a basis upon which the court could accept as accurate, the contention that advocates would normally only go by way of the date shown on the Notice served upon them. Therefore, there is no material which I can rely upon, to persuade me that the respondent was correct.
In any event, it is obvious that it is the Notice which the court served upon the parties, which brought about the confusion.
It would be unfair to have the applicant bear the burden of the confusion caused by the court.
But why did not the applicant act sooner?
It says that the court file had been missing from the registry.
However, the respondent insists that the court file had not been missing at all. If anything, the file was always available, as can be gleaned from the fact that the respondent was able to take steps to extract the certificate of Taxation.
Of course, once the Bill of Costs was taxed, the respondent who was in court when the Taxing Officer delivered her Ruling, knew the exact factual position.
In contrast, the applicant, who did not know that the Ruling on the taxation had been delivered, would not be as focused as the respondent, in its search for the court file.
As regards the delay of 23 days from the date when the applicant was served with the certificate of taxation, I hold the considered view that that period of time does not constitute such an
inordinate delay as to be inexcusable.
Finally, the applicant is only seeking an opportunity to challenge the decision of the Taxing Officer. As both parties would be accorded a hearing on the Reference, none of them would be prejudiced if the applicant was given the opportunity to file a Reference.
Accordingly, the application dated 11th September 2015 is allowed. The time for the filing of the Reference from the decision of the learned Taxing Officer is enlarged by 7 days from today.
The costs of the application shall be in the cause, in the Reference. If the Reference succeeds, the costs shall be awarded to the Applicant; whilst if the Reference fails, the Respondent would also have the costs of this application.
DATED, SIGNED and DELIVERED at NAIROBI this2nd dayof February2016.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
Miss Kogai for the Advocates/Applicant
Kariuki for the Client/Respondent
Collins Odhiambo – Court clerk.