[2022] KEHC 16517 (KLR)

Musyoka Kimeu & Company Advocates v Makata Savings & Credit Co-operative Society Limited (Miscellaneous Civil Application 88 of 2014) [2022] KEHC 16517 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16517 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application 88 of 2014

MW Muigai, J

November 8, 2022

Between

Musyoka Kimeu & Company Advocates

Plaintiff

and

Makata Savings & Credit Co-operative Society Limited

Defendant

Ruling

1. Before this court is a chamber summons application dated November 25, 2021 seeking the following orders, that;a.The applicant be granted leave to file reference out of time upon being furnished with written reasons.b.The registrar be directed to give reasons for her decision given on May 29, 2017. c.The costs of this application be provided for.

2. The application is supported by the affidavit of Joram Mwenda Guantai, advocate deponed on November 25, 2021 in which counsel contends that a bill of costs on January 22, 2015 and a ruling on the same delivered on May 29, 2021. Counsel wrote a letter to the deputy registrar on May 31, 2021 requesting for a certified copy of the ruling as well as certified copies of the court proceedings to enable them mount an appeal. There was no inordinate delay in requesting for the ruling, the ruling was delivered on May 29, 2021 and the request on May 31, 2021. It was deponed that this court should compel the deputy registrar to give formally give reasons for his decision.

Replying Affidavit 3. In opposition of the application, Musyoka M Kimeu, advocate on behalf of the respondent filed a replying affidavit dated February 28, 2022 in which he stated that the applicant is divested of the capacity to swear the supporting affidavit because he is not a party to the subject litigation and therefore the same ought to be struck off. It was deponed that the procedure for lodging an objection to the decision of the taxing master is well spelt in paragraph 11 (1) and (2).

4. Counsel contends that this court granted a conditional order in particular,“The respondent/ applicant shall within thirty (30) days from the date hereof give the requisite notice in writing in accordance with paragraph 11(1) of the Advocate’s Remuneration Order, 2009 and subsequently comply with sub-paragraph 11 thereof with regard to the filing reference by chamber summons setting out its ground of obligation to he taxation of costs.”

5. Counsel deponed that the applicant was aware of the ruling as early as June 9, 2017 as they had a representative when the ruling was delivered and therefore there was no inordinate delay neither did they receive a copy of the same late. He contends that the applicants contention that he received the ruling late was untrue and stated that the applicant should be subjected to pre requisite punishment subject to section 11 of the Oaths and Declaration Act. The respondent also stated that any court documents must be sworn by a party under oath under the provisions of Oaths and Declaration Act and order 19 of the Civil Procedure Act.

Defendant/ applicant Submissions 6. The applicant filed submissions dated June 15, 2022 in which counsel relied on the case of Salat v IEBC & 7 other (2014) eKLR 2012), Evans Gaturu Advocate v Kenya Commercial Bank Limited (2012), Ahmed Nasir Abdikadir & Co Advocates v National Bank of Kenya Limited (2006) and submitted that the court should extend the time for filing of a reference by the applicant. Further, there has been no inexcusable delay in presenting this application. The applicant has been diligent in seeking to have the dispute on the taxation of costs herein determined expeditiously. The applicant attempted to set aside the taxing officers decision of May 29, 2017 by an application dated June 7, 2017 which was dismissed for being incompetent on November 9, 2021 whereupon the applicant filed the present application. Further the taxing master did not give reasons for her decision.

Plaintiff / respondent Submissions 7. The respondent filed submissions dated June 6, 2022 in which he stated that as per paragraph 11 any party aggrieved by taxation should access the High Court or the Court of Appeal as the case may be.

8. It was submitted that the applicant has not in the application demonstrated the issued notice to the deputy registrar/ taxing master within 14 days of the decision on the items of the taxation which they were objecting nor have they demonstrated that any reasons were issued on taxation and what items they are objecting to. The applicants did not attach a copy of the reasons given by the taxing officer for the bill of costs. He submitted that the court cannot be left to speculate on the basis on the taxing of the bill of costs by the deputy registrar.

9. The respondent submitted that the application as drawn is incompetent for failure to comply with section 11 of the Advocates Remuneration Order. It was submitted that it is difficult and unreasonable for the honorable court to lay reasons for the roles taken up by the taxing master where a party has decided to cut corners by refusing to demonstrate vide a laid out procedure the grievance they are alleging. No error has been demonstrated by the applicant in the instant matter. Reliance was placed on the cases of Moves Mwicigi & 14 others v Independent Electoral Boundaries Commission & 5 others (2016) eKLR, Vishit Talwar v Anthony Thuo Kanai T/A Thuo Kanai Advocates (2014) eKLR, Lubellellah & Associates Advocates v Nasser Ahmed T/A Airtime Business solutions Misc Case no 719 of 2009.

Determination 10. This court perused the chamber summons, the responses thereto and the submissions of parties.

11. This court noted that this court issued orders on November 9, 2021;a.The respondent/ applicant shall within thirty (30) days from the date hereof give the requisite notice in writing in accordance with paragraph 11 (1) of the Advocate’s Remuneration Order, 2009, and subsequently comply with sub- paragraph (2) of paragraph 11 thereof with regard to the filing of a reference by chamber summons setting out its grounds of objection to the taxation of costs.b.There shall be a stay of execution of the certificate of costs dated October 10, 2017 pending the hearing and determination of the reference to be filed by chamber summons in accordance with paragraph 11 of Advocate’s Remuneration Order.c.…….

12. This court note that the application that has been filed does not indicate what item in particular is being objected to. No notice has been given to the taxing master as should be the case to enable him or her give reasons for his action. The applicant has again failed to comply with paragraph 11 of the Advocates Remuneration order and the effect was discussed by this court in its ruling of November 9, 2021. Consequently, the order sought to compel the registrar to give reasons for her decision herein is incompetent as the court should not be the one to initiate this process.

Extension Of Time 13. The considerations that the court takes into account when extending time were discussed in First American Bank of Kenya Ltd v Gulab P Shah & 2 Others [2002] 1 EA 65 where it was held that:“The court has unfettered discretion under sub paragraph (4) of rule 11 of the Advocates Remuneration Order to extend time prescribed by sub paragraph (1) and (2) of the same rule within which to give notice of objection to the decision on taxation and to file a reference to a judge in respect of such taxation...Factors to be taken into account in an application for extension of time are:(i).the explanation if any for the delay;(ii).the merits of the contemplated action, whether the matter is an arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice;(iii).Whether or not the respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant...The court is clothed with inherent powers and jurisdiction all the time in all causes irrespective of legislative or other juridical foundations of any such cause or matter before it as the juridical root of the court’s inherent power does not lie in section 3A of the Civil Procedure Act but in the nature of the High Court as a superior court of judicature.”

14. In Ahmednasir Abdikadir & Co Advocates v National Bank of Kenya Limited (2) [2006] 1 EA 5 the court held as follows:“Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling...Therefore the reference having been filed way out of the period prescribed should have been dismissed but having been given due consideration in substance, the same dismissed.”

15. In this case, the ruling was delivered on May 29, 2017 and this application has been filed on December 1, 2021, four years later. The applicant has not given reasons as to why he has not filed the reference on time. The applicant was aware of the ruling and had representative present in court when it was delivered.

16. As regards the merit of the reference, no draft has been supplied to enable the court know whether it is meritorious. The order sought for directing the deputy registrar to formally give reasons cannot be granted without a formal reference before the court. He however indicates that the deputy registrar did not give reasons for his decision.

17. The respondent has raised the issue of the supporting affidavit being sworn by Joram Mwenda Guantai, advocate should be struck out for failure to comply with the provisions of Oaths and Declaration Act and order 19 of the Civil Procedure Act.

18. In the case of Regina Waithira Mwangi Gitau vs Boniface Nthenge [2015] eKLR where the court observed as hereunder;“On issue number one, the established principle of law is that advocates should not enter into the arena of the dispute by swearing affidavit on contentious matters of fact. By swearing an affidavit on contentious issues, an advocate thus makes himself a viable witness for cross examination on the case which he is handling merely as an agent which practice is irregular. In Simon Isaac Ngugi vs Overseas Courier Services (K) Ltd 1998 e KLR and Kisya Investments Ltd & Others vs Kenya Finance Corporation Ltd, it was held that;“………………….it is not competent for a party’s advocate to depose to evidentiary fact at any stage of the suit”.In addition, rule 9 of the Advocates Practice Rules prohibit advocates from appearing as an advocate in a case wherein he might be required to give evidence either by affidavit or even orally. By swearing an affidavit on behalf of his client where issues are contentious, an advocate’s affidavit creates a legal muddle with untold consequences.”

19. Also in the case of Habiba Ali Mursai & 4 others v Mariam Noor Abdi [2021] eKLR the court observed that; 24. Be that as it may, I must state that the provisions of rule 9 of the Advocates (Practice) Rules as well as the various decided case law, dating back to the decision in the case of Simon Isaac Ngui v Overseas Courier Services [1998] eKLR, have underscored the fact that it is not acceptable for an Advocate to swear an affidavit and/or declaration, in respect of contentious evidential facts and/or issues.

“25. I must also add my voice to the same trite, if not, hackneyed legal position, which frowns upon advocates abusing their privileged positions, by venturing into and swearing affidavits pertaining to contentious evidential facts and/or issues, in matters where same have been retained as advocates.

26. Certainly, where an advocate swears an affidavit relating to contentious evidential facts or issues, such an advocate runs the risk of being invited into the witness box and thereafter be subjected to cross-examination. For coherence, such an invite, shall, if it does occur, expose the concerned advocate to the vagaries of litigation, including but not limited to cross-examination.

27. In my humble view, this trend ought to be eschewed altogether and if not, counsel must delineate the true scope and boundaries, for which same are permitted to swear affidavits, in respect of and/or pertaining to matters where the counsel is engaged as an advocate for either of the parties.

28. Nevertheless, it must also be known that the law does not prohibit and/or bar advocates completely from swearing affidavits, in the course of the duties and/or discharge of their professional mandate in matters where same are engaged.

29. What I am saying, is that an advocate can still swear an affidavit in the matter where same is engaged, provided the affidavit relates to issues that are born out of the record of the court, issues which have been pronounced upon, issues that the court is to take Judicial notice of, settled issues of law and/or issues that are admitted by the adverse party, either in the subject proceedings or any other proceedings, namely previous proceeding, between same parties.”

20. The applicant has not responded to this allegation. This court perused the supporting affidavit and the issues raised include a letter to the deputy registrar that the firm Muriungi and Company Advocates and signed J M Muraya. This court finds that the facts that the applicant has deponed with regards to are facts within his knowledge.

21. To that extent, this court finds merit in this application and extend the time within which the applicant is to file his objection with a period of 14 days but on condition that he pays to the advocate a sum of Kshs 30,000. 00 within the said period and in default the application shall stand dismissed with costs.

22. The costs of this application shall be in the reference.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8THNOVEMBER (VIRTUAL/PHYSICAL CONFERENCE)M W MUIGAIJUDGEIN THE PRESENCE OF:Langalanga H/b Mr Musyoka - For the applicantNo appearance for the respondentPatrick/Geoffrey - Court Assistant(s)