[2010] KEHC 3558 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Miscellaneous Application 907 of 2009

MURIITHI WANJAO &CEASAR NGIGE WANJAU...........RESPONDENT

VERSUS

TELKOM KENYA LIMITED……….………………....……...…APPLICANT

R U L I N G

The application has been brought through notice of motion under Sections 3; and 3(A) of the Civil Procedure Act, Cap 21, and Orders XLI, Rule 4 and L, Rule 1 of the Civil Procedure Rules. The application seeks the following order:

That the taxation of the bill of costs dated 23rd October, 2009, set down for 3rd December, 2009, be stayed pending the hearing of an intended appeal against the Ruling of the learned Deputy Registrar of this court, Mr. Okato delivered on 17th November, 2007. The application is supported by the affidavit of Lucy Barno. During the hearing of the application, Mr. Ciuri Ngugi, the applicant’s counsel, submitted that his client had raised some preliminary point to the bringing of that bill as drawn. However, that preliminary point of law was disallowed by Mr. Okato, Deputy Registrar. When the applicant made an application for stay of proceedings in taxation pending the hearing of the appeal, the same was denied by the Deputy Registrar. Further to the above, Mr. Ciuri also submitted that on 18th November, 2009, the applicant filed a notice of appeal against the Ruling and applied for copies of typed proceedings and certified copy of the ruling by the Deputy Registrar. According to him, the applicant has complied with the requirements of bringing an appeal for purposes of stay of taxation proceedings and that the intended appeal raises an important point of law and a matter of public interest. He was of the opinion that if the scheduled taxation proceedings are not stayed by this court, then they will proceed under the wrong schedule. In addition to the above, he submitted that, having raised those points of law and the Deputy Registrar having given his ruling, the same cannot be a subject of a reference after the taxation. Apart from the above, he reminded the court that the application is properly before me pursuant to order 41 rule 4 of the Civil Procedure Code. In support of his submissions, he quoted the case of Prime Bank Limited vs Esige (2005) 1 KLR page 163 and 164.

Secondly, he also submitted that if the stay of proceedings is not granted, then the intended appeal will be rendered nugatory. On the other hand, the application was vigorously opposed by Mr. Arimi Kimathi, the Respondent’s counsel. The learned Counsel relied on the replying affidavit of Muriithi Wanjau. Whereas he never challenged the chronology of events, he took issue with the fact that the Applicant’s counsel did not tell the court that they had caused a consent to be recorded before Mr. Okato, Deputy Registrar, on 17th November, 2009. He emphasized that the format and manner in which the bill of costs was to be taxed was agreed and recorded. It was the opinion of Mr. Kimathi that this is a mischievous application since the Applicant should first have set aside that consent order. Further to the above, he also took issue with the fact that in the application and affidavit, the Applicant never mentioned the consent. He reminded the court that a consent can only be set aside if misrepresentation or fraud has been proved. Besides the above, Mr. Kimathi also submitted that if the taxation went on, and the taxing master made a ruling which is unsatisfactory to the Applicant, then they would have recourse to the Court of Appeal. Finally, he submitted that even if the appeal is arguable, that is insufficient to enable the court grant the orders being sought. He was also of the opinion that the applicant should have convinced the court that if the application was not granted, then the appeal would be rendered nugatory. In support of his submissions, he quoted the following two authorities.

-John Gitonga Njiru vs. Tabitha Kamwangi Domisiano Kaburu Njeru, Civil Application No. NAI 201 of 2006.

-Kabundu holdings Limited vs. Ali K. Mohamed t/a Sky Club Restaurant, Civil Application No. NAI 59 of 2006.

This court has carefully considered the opposing submission by both counsels. In addition to the above, this court has also carefully considered the detailed Ruling by the Deputy Registrar viz, Mr. Okato. It is my considered opinion that he has stated correctly the position of the law. The court notes that in the HC Misc. App. No. 666 of 2001 at Milimani Commercial Court, Mbaluto, J. stated as follows:

“It is I think common ground that the lodging of an advocate/client bill of costs is the only way provided by law through which an advocate can lodge his claim from a client who has not paid such fees. Viewed from such an angle, the miscellaneous cause becomes the fees from a client who has advocates statements of claims in respect of services rendered by an advocate to his client at the client’s request. The cause is therefore to all intents and purposes a pleading and like any other pleadings must be subject to all procedural rules including mandatory striking out under Order VI rule 13(1) of the Civil Procedure Rules.”

This court finds that the bill of costs is properly before the Deputy Registrar and hence he should proceed with the same as provided by law. The Applicant will not suffer any prejudice whatsoever because he will be heard before the said officer delivers his considered ruling. In the event that the Applicant is prejudiced by the decision of the Deputy Registrar then he may seek a remedy as provided by the law. The upshot is that I hereby dismiss the application dated 24th November, 2009 with costs. Those are the orders of the court.

MUGA APONDI

JUDGE

Ruling read signed and delivered in open court in the presence of:

Mr. Kimathi - Applicant’s Counsel - absent

Ciuri Ngugi - Respondent’s Counsel

MUGA APONDI

JUDGE

22nd JANUARY, 2010.