[2023] KEHC 26335 (KLR)

NCBA Bank (K) Ltd v Seaman Building & Civil Engineering Ltd & 3 others (Miscellaneous Case 97 of 2022) [2023] KEHC 26335 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26335 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Case 97 of 2022

SM Mohochi, J

November 21, 2023

Between

NCBA Bank (K) Ltd

Applicant

and

Seaman Building & Civil Engineering Ltd

1st Respondent

Francis Macharia Mbugua

2nd Respondent

Scholastic Wangu Macharia

3rd Respondent

Margaret Muthoni Macharia

4th Respondent

Ruling

Introduction 1. This is a Notice of Motion Application dated 25th August 2023, brought pursuant to Article 159 of the Constitution of Kenya, Order 50 Rule 6 of the Civil Procedure Rules, Sections 4(1), and 22 of the Limitation of Actions Act and Schedule 6 of the Advocates (Remuneration) Order 2009 all other enabling provisions of the law, the Applicant is seeking the following reliefs;i.Spent.ii.That that this Honourable Court be pleased to enlarge time within which to file a reference against the decision of the Taxing Officer delivered on the 28th June 2022 and 29th June 2022. iii.That the reference herewith be deemed to have been properly filed on time.iv.That costs of this Application be in the cause.

2. The Application is supported by the sworn affidavits of Emmanuel Mumia, and is premised on the following eleven (11) grounds as follows;i.Vide the Rulings dated 28th June 2022 and 29th June 2022, the Taxing Officer awarded the 1st and 2nd Respondents and the 3rd and 4th Defendants a colossal sum of Kshs 1,933,976. 15 and Kshs 1,934,786 in respect of their Party and Party Bill of Costs.ii.The Applicant duly requested to be furnished with the reasons for taxation which was supplied on 22nd July 2022. iii.The Applicant has since prepared a reference dated 4th August 2022 which was lodged for filing in Court on 5th August 2022. iv.Despite lodging the reference within the statutory timelines and operational hours of Court the High Court registry failed and/or declined to assess the reference to enable completion of the filing process.v.Upon enquiry, the Applicant's Counsel was informed that the Court clerk/officer responsible for assessment had left the Court station.vi.No valid explanation was provided for the Court clerk/officer's absence from the Court station during the operational hours of Court.vii.It was only through receipt of the email dated 8th August 2022 from the Registry containing the invoice for payment of Court filing fees that the Applicant's Counsel learnt that the reference had been assessed and filed on 8th August 2022, out of time, as opposed to the actual date it was lodged, 5th August 2022. viii.The delay was solely occasioned by the Court registry's failure to assess and file the reference when lodged on 5th August 2022. ix.It is in the interests of justice if the application is allowed as prayed to pave way for the re-taxation of the Respondents' respective Party and Party Bill of Costs dated 28th June 2022 and 29th June 2022 to obviate a miscarriage of justice and curb unjust enrichment by the Respondents.x.The application has been filed timeously without any unreasonable delay.xi.The Respondents will suffer no prejudice if the application is allowed.

3. This Court on the 14th March 2023, 19th May 2023 and on the 6th July 2023 gave directions on filing and exchanging written submission with the Ruling being reserved for the 17th October 2023. Owing to exigencies of work the delivery of this ruling is delayed by one month.

4. The Applicant filed its written submissions on the 18th of May 2023 and the Respondents filed their Grounds of Opposition on the 12th May 2023 and Written submissions on the 15th of June 2023.

Applicant’s Case 5. The Applicant submits that, its Application emanates from the ruling on the Respondents Bill of Costs dated 13th July 2020.

6. That, the Applicant duly requested to be furnished with reasons for taxation which was supplied on 22nd July 2022.

7. That, the Applicant has since prepared a Reference dated 4th August 2022 which was lodged for filing in court on 5th August 2022.

8. That, despite lodging the reference on the 5th August 2022, it was only through receipt of the email dated 8th August 2022 from the registry containing the invoice for payment of Court filing fees that the Applicant's Counsel learnt, that the reference had been assessed and filed on the 8th of August 2022, out of time.

9. That it is on the basis of the grounds mentioned above, that the Applicant takes the position that, the delay was solely occasioned by the Courts registry's failure to assess and file Reference when lodged on 5th August 2022.

10. It is Applicant’s considered opinion that, the issue tor determination before this Honourable Court is: Whether the Court should enlarge time within which to file a reference against the decision of the Taxing Officer delivered on the 28th June 2022 and 29th June 2022?

11. That, Paragraph 11 of the Advocates Renumeration Order clearly sets out that the High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph I of the same paragraph.

12. That Paragraph 11 of the Advocates Renumeration Order is however silent on the relevant factors that the Court should consider when exercising its discretion on whether or not an extension of time should be granted. Guidance must therefore be sought from case law and reliance has been placed on the case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR the Court of Appeal while referring to other authorities observed; -“The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy, or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the Respondent and interested parties if the application is granted and whether the matter raises issues of public importance."

13. That in dealing with the matter of the period of delay the court in Jubilee Insurance Co. Ltd v John Njeru Kariuki [2014] eKLR, held that;“...it is settled law that delay of less than a month is excusable provided that an explanation is given to the satisfaction of court”.

14. Further the Supreme Court in County Executive of Kisumu v County Government of Kisumu and 8 Others [2017] eKLR elaborately discussed issue of discretion in enlargement of time and held;“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"

15. The court in Vishva Stones Suppliers Company Ltd v. RSR Stone [2020] eKLR citing the Court of Appeal Civil Application No. 55 of 2020 stated that "The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained".

16. The Applicant submits that, no unreasonable delay has been occasioned in the filing of the instant reference before this Court and they have presented a satisfactory explanation to this court.

17. That from the foregoing, it is clear that the Courts will generally allow extension of time as long as the delay is not inordinate and does not prejudice the other party.

18. The Applicant submits that, the delay is solely attributed to the Court Registry which failed to admit the documents for assessment and filing despite their presentation for filing within the set timeline.

19. The Applicant submits that, the Respondents will not be prejudiced if the Application is allowed.

20. That it is in the interest of Justice that the application is allowed as prayed, and that, this court should exercise its discretion in favour of the Applicant.

21. The Applicant prays that, the Court be pleased to enlarge time within which to file reference and the reference herewith be deemed to have been properly filed on time.

Respondents Case 22. The Respondents are opposed to the Application and filed their Grounds of Opposition on the 12th May 2023 and Written submissions on the 15th of June 2023.

23. In the Grounds of Opposition dated 12th May 2023, the Respondents contend that;i.That, the application is misconceived, bad in law and meant to deny the Respondents fair justice of their legal fees for representation in HCC No. 20 of 2019. ii.That, the applicant herein has time and again weaponized the tools of civil procedure and fashioned the same into efficient tools of time wastage meant to frustrate the Respondent's right to costs as ordered by this Honorable Court.iii.That, indeed the tenets of taxation are very clear the same being expressed in mathematical accuracy in the Advocates Remuneration Order 2014 as such the same is a matter of calculation.iv.That, the Taxing master applied herself to the provisions of schedule 6A of the Advocates Remuneration Order and equally considered the nature of the prayers and considering the nature of the suit and weight and magnitude of the matter, it was just that the court exercises its discretion on instruction fees as taxed.v.That, the application herein is rather baseless and thinly veiled shameless attempts to waste the Courts time on a matter and delay payment of the costs awarded.

24. The Respondent Submit in support of their opposition that, the Application is unmerited for the following reason(s);“Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise: Chamilabs v LaljiBhimii and ShamjiJinabhai Patel, High Court of Kenya, Civil Case No. 1062 of 1973 "

25. That in the case of Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR the Court observed;“On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Office unless the Taxing Officer, erred in principle in assessing the costs."

26. The Respondent Submit that, the matter of taxing Party and Party bill of cost was a matter of arithmetic and which was applied by the taxing officer correctly in taxing the respondents' bills of cost and indeed the principles guiding the review of taxation in this court were settled in President of the Republic of South Africa and Others Vs Gauteng Lions Rugby Union and Another:a.Costs are awarded to a successful party to indemnify it for the expense to which it has been put through, having been unjustly compelled either to initiate or defend litigation.b.A moderating balance must be struck which affords the innocent party adequate indemnification, but within reasonable bounds.c.The taxing master must strike this equitable balance correctly in the light of all the circumstances of the case.d.An overall balance between the interests of the parties should be maintained.e.The taxing master should be guided by the general precept that the fees allowed constitute reasonable remuneration for necessary work properly done.f.And the court will not interfere with a ruling made by the taxing master merely because its view differs from his or hers, but only when it is satisfied that the taxing master's view differs so materially from its own that it should be held to vitiate the ruling.

27. The Respondent place further reliance in the case of Phemchand Raichand Ltd Another vs Quary services of East Africa Ltd and Another. [12] The principles laid out are:i.the instruction fee should cover the advocates work including taking instructions preparing the case for trial or appeal.ii.The taxing master was expected to tax each bill on its merits,iii.The value of the subject matter had to be taken into account;iv.The taxing master's discretion was to be exercised judicially and not whimsically or capriciously;v.Though the successful litigant was entitled to a far reimbursement, the taxing master had to consider the public interest such that costs were not allowed to rise to a level that would confine access to the courts to the wealthy;vi.No appeal or reference can be allowed unless the appellant can show or demonstrate that the above-mentioned principles have been breached because judges on appeal as a principle do not like to interfere with an assessment of costs by the taxing officer unless the officer has misdirected himself or herself in a matter of principle, but if the quantum of an assessment is manifestly extravagant, a misdirection of principle may be a necessary inference, [13]

28. It is our submission therefore that the taxing officer applied herself in taxing the Respondents bills of costs and thus the instant application lacks merit and should be dismissed with costs.

Analysis and Determination 29. Section 95 of the Civil Procedure Act provides for the enlargement of time;Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

30. From the provisions of the law cited above it is evident that a party to who is aggrieved by the decision of a taxing officer and wishes to lodge an objection to it is duty bound to give notice in writing to the taxing master. He should do so within 14 days of the decision of the taxing master. The notice should consist of what I would call an itemization of the items he or she objects to. That means he should list the specific items he has an issue with. Then the taxing master shall give him or her the reasons for the taxation.

31. Thereafter, the aggrieved party may, within fourteen days of upon receipt of the reasons from the taxing officer, apply to a judge setting out the grounds of the objection. It means that a reference is to be filed before the judge after the reasons for the taxation have been given. Before then, there is no reference that can lie to the judge. This is because the judge shall have nothing to fault the taxing master on or approve him of.

32. In the case at hand, ruling on the bill of costs was delivered on the 29/6/2022. The applicants’ counsel wrote a letter dated 06/7/2022 requesting the taxing officer to supply her with the reasons for the ruling to enable her file a reference. It submits that the Taxing master supplied reasons for taxation on the 22/7/22. The 14-day window to file reference was to lapse on Friday the 13/07/22. In essence, the Applicant’s counsel should have filed the reference before being supplied with the reasons by the taxing officer as required by Paragraph 11 (1) and (2) of the Advocates Remuneration Order.

33. However, for the Applicant to mount a credible reference he would ideally be with the Reasons for taxation and as such the 14-day window would be computed from the 22nd July to the 5th of August 2022. The Applicant lodged his Application on the 5th August 2022 but was ultimately assessed and received as filed on the 8th August 2022.

34. It should be recalled that between the 5th and the 8th of August was a weekend and that this court finds that, the delay was not in ordinate in fact it was occasioned by court registry staff who never processed the Refence immediately it was electronically sent.

35. Based on the finding, this court is of the view then that the issue as to whether or this court has the discretion to extend time for filing of reference is ripe for consideration.

36. This Court equally finds that the Instant Application was filed within a month therefore no delay can be attributed to the Applicant.

37. The Respondents unfortunately elected not to submit to the Application for extension of time to file the Reference

38. I do find that the Applicant is entitled to pursue his Reference I do allow the Application dated 25th August 2023, in the following terms: -v. An Order to enlarge time, within which to file a reference against the decision of the Taxing Officer delivered on the 28th June 2022 and 29th June 2022 is hereby issued.vi. The reference Dated 4th August 2022 filed herewith is deemed to have been properly and duly filed on time.vii. The Respondent shall file and serve Response to the reference within 14 days of today.viii. The Applicant Shall file and serve Written Submissions within 21 days from today.ix. The Respondent shall file and serve Written Submissions within 30 days.x. Costs of this Application be in the cause.xi. A Mention Date shall be fixed after the timelines above to confirm compliance and fix ruling date.It is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 21ST NOVEMBER 2023. ......................................MOHOCHI S.MJUDGE