[2023] KEHC 23238 (KLR)

Nairobi City Water & Sewerage Company Limited v Koceyo & Company Advocates (Miscellaneous Application E435 of 2021) [2023] KEHC 23238 (KLR) (Civ) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23238 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E435 of 2021

CW Meoli, J

October 5, 2023

Between

Nairobi City Water & Sewerage Company Limited

Applicant

and

Koceyo & Company Advocates

Respondent

Ruling

1. Nairobi City Water & Sewerage Company Limited (hereafter the Applicant) brought the Notice of Motion dated 27th July, 2022 seeking leave and/or the enlargement of time for the Applicant to file an Objection and a Reference out of time against the ruling delivered by the taxing master, on 28th April, 2022 ; that the Notice of Objection and Reference be deemed as duly filed and served upon payment of the requisite fees; and that the court do grant a stay of execution of the ruling on taxation, pending determination of the Reference.

2. The Motion is expressed to be brought pursuant to Article 159 (d) of the Constitution of Kenya 2010; Paragraph 11 of the Advocates Remuneration Order; Sections 3A and 95 of the Civil Procedure Act; and Order 50 Rule 6 & Order 51, Rule 1 of the Civil Procedure Rules.

3. The grounds on the face of the Motion are amplified in the supporting affidavit sworn by the Applicant’s advocate, Marire Tonny, to the effect that the taxing master delivered a ruling on 28th April, 2022 in respect to the Advocate-Client Bill of costs dated 31st August, 2021 allowing costs in the sum of Kshs. 152,424/-, and that subsequently a certificate of taxation was issued on 12th April, 2022. The advocate deposes that the Applicant views the sum taxed as manifestly excessive and desires to challenge the award by way of a Reference, however the time stipulated for lodging such a Reference has since lapsed.

4. He further deposed that the delay in timeously filing a Notice of Objection and Reference was unintentional and was caused by events beyond the Applicant’s control. Namely, the delay in obtaining a copy of the taxation ruling as well as instructions from the Applicant on the next steps. Finally, the advocate averred that it would be in the interest of justice for the time to be enlarged, adding that the firm of Koceyo & Company Advocates (hereafter the Respondent) does not stand to suffer any prejudice in the circumstances.

5. The Motion is opposed through the replying affidavit sworn on 21st March, 2023by Titus Koceyo, a partner at the Respondent firm of advocates. He contended that there has been an inordinate and unexplained delay on the part of the Applicant in bringing the instant Motion. He further contended that contrary to the averments made in the Motion, the Applicant’s advocate received a copy of the taxation ruling just three (3) days following its delivery. The advocate therefore termed the Motion as frivolous, an abuse of the court process and a waste of the court’s time.

6. In conclusion, counsel averred that the Respondent stands to suffer prejudice having rendered legal services to the Applicant and upon which it is entitled to receive payment.

7. The Motion was canvassed through written submissions. Relying on the decisions in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR and Andrew Shisala Angalushi v Zephenia .K. Yego & Aginga Asiligwa Chanzu [2020] eKLR on the discretionary power of the courts to extend the time required for the performance of an action, counsel for the Applicant echoed his earlier depositions that the delay in filing the Reference was unintentional and has been well explained in the affidavit supporting the Motion.

8. Counsel also argued that there has been no inordinate delay in bringing the instant Motion, adding that the grounds raised in the Reference are arguable. It was the submission by counsel that unless the orders sought are granted, the Applicant stands to suffer prejudice by being compelled to pay a sum which in its view is inordinately high, while the Respondent does not stand to suffer any prejudice that cannot be compensated for by way of costs.

9. Concerning the prayer for a stay of execution, the Applicant’s counsel anchored his submissions on Miller & Company Advocates v China Roads & Bridge Corporation (Miscellaneous Application 168 of 2019) [2021] KEHC 408 (KLR) (Commercial and Tax) and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR regarding the relevant considerations.

10. Counsel further asserted that substantial loss has been established by the Applicant, by demonstrating that unless the order of stay is granted, the Applicant may be compelled to pay an inordinately high sum in legal fees, arising out of the taxation, adding that there is no guarantee that the Respondent will be in a position to refund the said sums if the Reference is successful. Counsel therefore urged the court to exercise it discretion by allowing the Motion as prayed.

11. The Respondent’s counsel on his part submitted that the Motion is unmerited. He cited Paragraph 11(1) & (4) of the Advocates Remuneration Order and the decisions in Nicholas Kiptoo Korir Arap Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] eKLR and County Government of Tana River v Miller and Company Advocates [2021] eKLR to argue that extension of time is not automatic. Pointing out that the delay of over 90 days in bringing the Motion is inordinate and that no proper justification has been made.

12. On the question of stay of execution, the Respondent’s counsel contended that the Applicant has not satisfied the applicable principles. Contending that substantial loss has not been demonstrated and further that, the instant Motion does not raise any arguable grounds hence possibility of the intended Reference being rendered nugatory. The court was consequently urged to dismiss the Motion with costs.

13. The court has considered the material canvassed. The first prayer seeks extension of time for filing a notice of objection and Reference to challenge the taxation ruling delivered in the cause. Paragraph 11 of the Advocates Remuneration Order provides for the procedure for objecting to a decision on taxation and on the filing of a Reference, as seen hereunder:“(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), [and] may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(5)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.”

14. From the foregoing, it is clear that courts have discretionary powers to enlarge the time for the performance of any action under the above paragraph and as enunciated in County Executive of Kisumu v County Government of Kisumu and 8 Others [2017] eKLR where the Supreme Court of Kenya held that:“It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as the under-lying principles that a Court should consider in exercise of such discretion: 1. 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;

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents if the extension is granted;

6. Whether the application has been brought without undue delay; and

7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

15. In the present instance, the taxation ruling was delivered on 28th April, 2022 in respect to the Advocate-Client Bill of Costs dated 7th September, 2021. It is apparent that the instant Motion; being dated 27th July, 2022, was brought three (3) months after the stipulated timelines set out under Paragraph 11 (supra). As earlier mentioned, the explanation by the Applicant’s counsel is that the delay in the present instance was occasioned by the time taken to obtain a copy of the taxation ruling to enable him understand the reasoning therefore, and in further obtaining instructions to file a Reference.

16. However, upon perusal of the record, the court observed that the taxation ruling contained the reasons supporting the decision. It is not clear whether copies of the ruling were furnished to the parties present immediately after delivery. Moreover, even assuming that this was done, it is reasonable to expect that the Applicant’s counsel would have sought instructions from his client before taking any further step. Being a public body, the Applicant’s internal bureaucratic processes may have delayed the decision by the Applicant and the relaying of instructions to counsel on 21st March, 2023l. This explanation for delay, as advanced in this motion appears plausible.

17. The court is therefore satisfied that the explanation offered for delay is reasonable and excusable in the circumstances. Any prejudice to the Respondent caused by delay can be compensated through costs and mitigated through appropriate orders for the expedited disposal of the reference. The right of a party to be heard on an appeal is constitutionally underpinned and cannot be lightly taken away. In Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR the Court of Appeal had this to say in that regard:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice…”

18. Concerning the second prayer for stay of execution, the same appears premature as no judgment has been obtained in respect of the certificate of taxed costs. The ruling of the taxing master and certificate of costs by themselves are incapable of execution, as we know it. That said, and in order to facilitate the Applicant’s right of appeal, the court will allow the Applicant’s motion in terms that:a.Time is extended to allow the Applicant to file a reference out of time.b.The objection and reference already filed herein are hereby deemed as properly filed.c.In addition, the court will, in lieu of an order to stay execution grant an order to maintain the status quo concerning any proceedings for the realization of the certificate of taxed costs, pending the hearing and determination of the reference.d.The status quo order in (c) above is granted subject to the condition that the Applicant shall prosecute the reference within 120 (One Hundred and Twenty) days of this ruling in default of which the order shall automatically lapse.e.The costs of the motion dated 27. 07. 2023 are awarded to the Respondent in any event.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5THDAY OF OCTOBER 2023. C.MEOLIJUDGEIN THE PRESENCE OFFOR THE APPLICANT: MR. OMONDIFOR THE RESPONDENT: MS. NYAKUNDI H/B FOR MR. KOCEYOC/A: CAROL