[2022] KEHC 26924 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CIVIL APPEAL NO. 189 OF 2011

NANCY MUSILI.......................................................................APPELLANT

VERSUS

JOYCE MBETE KATISI .....................................................RESPONDENT

(Being an appeal from the ruling of the Chief Magistrate’s Court of Kenya at Machakos delivered on the 8/11/2011 by the Honourable Thuranira Jaden in Machakos Chief Magistrate’s Civil Suit No. 518 of 2007)

JOYCE MBETE KATISI..........................................................................PLAINTIFF

VERSUS

NANCY MUSILI....................................................................................DEFENDANT

RULING

1. By a Motion on Notice dated 7th May, 2021, the Respondent/Applicant herein seeks an order that entered for the Applicant and decree be and is hereby issued for the taxed costs judgment be and is hereby of Kshs. 148,250/=. He also seeks that provision be made for the costs of the application.

2. In a rather brief affidavit which did not set out the background of the matter, the applicant averred that upon the conclusion of the matter, a Bill of Cost was filed, taxed and Certificate of Taxation given on 23rd March, 2021. However, the Respondent refused to honour and settle the taxed amount hence provoking this application by which the Applicant seeks that judge.

3. By a further affidavit, it was deposed that the appellant/respondent had applied for stay before this court and the same was declined. However, the respondent has not informed the court that she further applied for stay before the Court of Appeal and the same was declined by a ruling delivered on 18th June, 2021. It was averred that since the appellant/respondent has not challenged the taxation by way of reference or otherwise, there is no basis for staying this application.

4. It was further averred that the applicant (sic) has also not informed this court that there is an application to set aside the orders of the chief magistrate issued on 10th March, 2021 allowing the appellant/respondent to deposit security of Kshs 1,000,000/= for being at variance with the orders of the Court of Appeal issued on 18/6/2021 and those of this Court issued on 11/3/2020 all declining stay. To the Applicant, the respondent has used all manner of excuses to delay payment of the decretal sum as well as taxed costs and hence this application be allowed so that she can recover the taxed costs.

5. In response to the Application, the Respondent averred that on 23rd October, 2019, this Court dismissed this appeal with costs to the Respondent. Aggrieved by the said decision, the Appellant/Respondent appealed to the Court of Appeal on 28th August, 2020, vide a Notice of Motion dated, 20th August, 2020 (Civil Appeal E237 of 2020) and the court ordered stay pending the Court of Appeal decision on condition that the Respondent deposits Kshs. 1,000,000/= in court which the Respondent complied with and that the matter now awaits the decision of the Court of Appeal.

6. This Court was therefore urged not to allow the instant application until the Court of Appeal case is heard.

Determination

7. I have considered the application, the affidavits, both in support of and in opposition to the application as well as the submissions on record.

8. While the application is grounded on Section 3A of theCivil Procedure Act; Order 51 Rule 1 of The Civil Procedure Rules, The Advocates Actand all enabling provision of the law, it is clear that the only provision that deals with entry of judgement on taxed costs is Section 51 of theAdvocates Act which stipulates as follows:-

(1) Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.

(2)The certificate of the taxing officer by whom any bill has been taxed shall unless it is set aside or altered by the court, be final as to the amount of the costs recovered thereby; and the court may make such order in relation thereto as it thinks fit, including where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.

9. In my view there are conditions set down under the said provision for the entry of judgement. In order for the same to be entered, the Applicant/Advocate ought to satisfy the court that there is in existence a certificate of the taxing officer by whom any bill has been taxed which certificate has not been set or altered by the court. Secondly, the advocate ought to satisfy the court that retainer is not disputed.Where therefore there is in existence an order setting aside or altering the certificate of costs, judgement will not be entered. It is similarly my view that where there is an order staying further proceedings or the execution of the very decision from which the certificate of costs was issued, an application which seeks the entry of judgement in accordance with the taxed costs ought not to be granted since the effect of entry of the said judgement would be to trigger the process of execution.

10. In this case, it is contended by the Respondent that following the judgement of this Court, the Court of Appeal conditionally stayed its execution and that the conditions imposed were complied with by the Respondent. In the replying affidavit, the Applicant averred that the application for stay of execution was declined by the Court of Appeal and annexed a copy of the ruling delivered by the Court of Appeal on 18th June, 2021 in Civil Application No. E237 OF 2020 in which the Court of Appeal was of the view that since the intended appeal, whether from the order dismissing the appeal or from the ruling dismissing stay, is against a negative order, it was not persuaded that the appeal would be rendered nugatory in the event that the orders sought were not allowed. The Respondent has not exhibited any order to the contrary.

11. From the foregoing, it is clear that the Respondent has set out to defend the application based on allegations which she knew very well were false. Such conduct does not speak well of a litigant seeking that the Court finds in her favour. In John Kiragu Mwangi vs. Ndegwa Waigwa Civil Application No. Nai. 179 of 2000, it was held by Shah, JA in dismissing an application for extension of time that a delay (simple inaction) to file appeal within time, that is sought to be explained away by contrived grounds is not made bona fide. In my view favourable orders cannot be sought and obtained on the basis of an affidavit that is less than candid and is meant to mislead. In that event, the application would be refused since default ought not to be explained away by contrived grounds. Not much emphasis can be placed on a deposition, which shows that the deponent is not candid enough in his affidavit and having been evasive and economical on the truth. Therefore, an application seeking exercise of the court’s discretion must be supported by an honest explanation and it is a serious matter to attempt to mislead the court by untruthful or half-baked affidavits since sufficient reason for the purposes of the exercise of discretion cannot be established on the basis of an obviously incorrect or twisted affidavit. See Hon. Mzamil Omar Mzamil vs. Rafiq Mohamed Walimohamed Ansari Civil Appeal No. 44 of 1982,Shaban Hamisi Kuriwa & Another vs. Joe M Mwangi & 3 Others Civil Application No. Nai. 122 of 1996, Peter Gachege Njogu vs. Said Abdalla Azubedi Civil Application No. Nai. 370 of 2001, Koyi Waluke vs. Moses Masika Wetangula & 2 Others Civil Appeal (Application) No. 307 of 2009 and John Kiragu Mwangi vs. Ndegwa Waigwa Civil Application No. Nai. 179 of 2000.

12. Counsel, as officer of the Court, ought to take care to ensure that documents they place on record on behalf of their clients, do not contain deliberate untruths meant to mislead the Court into granting orders or otherwise denying otherwise merited orders.

13. Based on the decision in Mbai & Kibuthu Advocates vs. Mbo-I-Kamiti Farmers Company Limited Nairobi (Milimani) HCMA No. 659 of 2004, while I am not sure of the wisdom of applying for judgement in a party and party Bill of Costs as opposed to Advocate/Client Bill of Costs I allow this application and enter judgement in the sum of Kshs. 148,250/= as prayed together with costs.

14. Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 11TH DAY OF FEBRUARY 2022.

G.V ODUNGA

JUDGE

DELIVERED IN THE ABSENCE OF THE PARTIES.

CA SUSAN