[2023] KEHC 25457 (KLR)

Odiero v Owiti, Otieno & Ragot Advocates (Miscellaneous Application 10 of 2023) [2023] KEHC 25457 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25457 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Application 10 of 2023

RE Aburili, J

November 14, 2023

Between

Hezbon Ombwayo Odiero

Applicant

and

Owiti, Otieno & Ragot Advocates

Respondent

Ruling

1. By Notice of Motion dated 4th September 2023 brought under section 11 of the Advocates Act, cap 16 Laws of Kenya, the applicant Hezbon Ombwayo Odiero acting pro se sought the following orders:a.This Honourable court do grant leave to the applicant to issue Notice out of time to the Deputy Registrar of this honourable on the items of taxation in the bill of costs dated April 11, 2022 which he objects taxation thereof in Kisumu Misc Application No 92 of 2022 – Owiti, Otieno & Ragot Advocates v Hezbon Ombwayo Odiero.b.That costs of this application be provided for.

2. The Application is founded on the grounds set out on the face of the application and on the supporting affidavit sworn by the applicant on the September 4, 2022.

3. The applicant deposes and asserts that he had instructed the respondent advocate to act on his behalf in Kisumu HCCCivil Petition No. 9 of 2012 – Hezbon Ombwayo Odiero v The Ministry for the State for Provincial Administration and Internal Security & 3 others wherein the parties herein mutually agreed that the applicant pay the respondent an all-inclusive fee of Kshs. 250,000 as legal fees.

4. It was the applicant’s case that judgement was entered in his favour on the January 28, 2016 to the tune of Kshs. 5,000,000 but that the respondent could not obtain the judgment and in 2019, the respondent informed the applicant to find another person to collect the said judgment.

5. The applicant averred that based on the respondent’s expressions, he went ahead and instructed the firm of Agina & Associates Advocates who filed an appeal against the judgement in Kisumu HCC Civil Petition No. 9 of 2012 – Hezbon Ombwayo Odiero v The Ministry for the State for Provincial Administration and Internal Security & 3 others.

6. It was the applicant’s case that he was surprised to learn that somewhere in March 2023, the respondent had filed Kisumu HC Misc. Civil Application No. 16 of 2019 (JR) without his instructions seeking to compel payment of the decretal sum in Kisumu HCC Civil Petition No. 9 of 2012 and that he instructed the firm of Agina & Associates Advocates to come on record for him and as such, there was no advocate – client relationship between the applicant and respondent in Kisumu HCMisc. Civil Application No. 16 of 2019 (JR).

7. The applicant averred that consequently, the impugned bill of costs dated April 11, 2023 was taxed ex-parte at Kshs. 677,790. 08 and taxed without service on the applicant was irregular for lack of service and for lack of instructions from the client.

8. It was the applicant’s case that he did not pay the respondent Kshs. 15,000 as legal fees in Kisumu HC Misc. Civil Application No. 16 of 2019 (JR) but that all payments made to the respondent were in relation to the respondent’s legal services rendered in Kisumu HCC Civil Petition No. 9 of 2012.

9. The appellant averred that the respondent had filed another application dated November 4, 2022 in Kisumu HC Misc. Application No. 92 of 2022 seeking that the order made on October 13, 2022 for the taxed sum of Kshs. 677,790. 08 be adopted as judgment of the court and that unless the proceedings therein are stayed, the applicant will suffer irreparable loss and damage.

10. It was the applicant’s case that his wife Benter Adhiambo Ombwayo wrote to the respondent in June 2020 renouncing her power of attorney that the applicant had donated to her concerning the original suit Kisumu Hc. Petition No. 9 of 2012 and that in any case his wife only had powers to receive and execute documents on his behalf and not to issue instructions concerning the conduct of his case.

11. The applicant further averred that he ceased instructing the respondent regarding the execution in Kisumu HC Petition No. 9 of 2012 vide his email dated November 23, 2019 which was ignored by the respondent who proceeded to prosecute Kisumu Misc. Application No. 16 of 2019.

12. The applicant averred that items 33 – 111 of the impugned bill of costs dated April 11, 2022 related to services rendered by the respondent after the applicant had withdrawn his instructions.

13. The applicant denied writing a letter or instructing his advocates, Agina & Associates Advocates, to write to the Attorney General instructing him to make payments to the respondents of an amount totalling to Kshs. 1,360,579. 08.

14. The applicant denied receiving an email notice of the taxation proceedings and stated that he only became aware of the same after regaining access to his emails account on the August 23, 2023.

15. The applicant further averred that in the instant case, the respondent did not comply with the timelines for filing his response to the instant application and as such the respondent’s replying affidavit sworn on the October 7, 2023 was filed out of time and was improperly on record.

16. The respondent advocates opposed the application vide a replying affidavit sworn on the October 7, 2023 by Jude Ragot Advocate deposing that the instant application as presented was misconceived, frivolous and an abuse of the court process and that as the said taxation proceedings emanated from the instant court, the same ought to have been filed in the parent file where taxation took place and not by separate proceedings.

17. It was the respondent’s contention that they had specific and express instructions from the applicant to execute for judgement emanating from Kisumu HCCCivil Petition No. 9 of 2012 videa Power of Attorney executed by the applicant in favour of his wife Benter Adhiambo Ombwayo to have them follow up on the execution and have all the proceeds arising therefrom paid directly to his wife.

18. The respondent further deposed that further to the Power of Attorney, they continued to copy and deliver all correspondences relating to the execution process to the applicant as the principal client on his email address and his wife.

19. It was further deposed by the respondent that having been instructed by the applicant to undertake representation in the original suit, the respondent was equally under a duty to enforce the judgement thereon on behalf of the applicant unless stopped by the applicant within the meaning of order 9 rule 5 of the Civil Procedure Rules and that they did indeed stop their representation of the applicant once this was complained of and initiated the taxation proceedings now complained of.

20. The respondent further deposed in contention that contrary to the allegations by the applicant that he became aware of the taxation proceedings on the August 23, 2023 when he managed to access his email, the same was a deliberate misrepresentation because as far back as April 12, 2023, the respondent had served the applicant with its replying affidavit to his application dated March 22, 2023 in which he had sought to have his current advocates take over representation.

21. It was further deposed by the respondent that despite having been served with the aforementioned replying affidavit on the 12. 4.2023 more than 5 months ago, the applicant had not given any explanation as to why he had not found it appropriate to move court earlier to seek the instant application for leave to file his reference.

22. The respondent deposed that the instant application by the applicant was in bad faith and a decoy with the sole intention to delay the respondent’s right to claim fees due.

23. The application was canvassed by way of written submissions with the respondent entirely relying on the replying affidavit.

The Applicant’s Submissions 24. The applicant submitted that he had not complied with paragraph 11 of the Advocates Remuneration Order in lodging the appeal within 14 days from the date of the order or certificate of costs and that the filing of the chamber summons herein was intended to achieve enlargement of time which powers this court has.

25. It was the applicant’s case that failure to access the taxation notice and bill of costs was due to the applicant’s inability to access his email address wherein the respondent served him and that he managed to access the said email on the August 23, 2023 and two weeks later he filed the instant application thus unreasonable delay did not arise.

26. The applicant submitted that he never paid the alleged Kshs. 15,000 for filing in Kisumu Mis. Application No. 16 of 2019 and that the receipt relied on by the respondent was a creation by the respondent as the applicant did not instruct the respondent to execute in the original suit in Kisumu HC Petition No. 9 of 2012.

27. It was further submitted that his wife Benter Adhiambo Ombwayo wrote to the respondent in June 2020 renouncing her power of attorney that the applicant had donated to her concerning the original suit Kisumu Hc. Petition No. 9 of 2012 and that in any case, his wife only had powers to receive and execute documents on his behalf and not to issue instructions concerning the conduct of his case.

28. The applicant submitted that the respondent had been proceeding after judgement was delivered in Kisumu HC. Petition No. 9 of 2012 without the applicant’s instructions even after the applicant had stopped the respondent from representing him which was evidence that the respondent has been after unjust enrichment from the decretal sum awarded to the applicant in the aforementioned case.

29. The applicant submitted that the instant application was not an afterthought as he was not aware of the taxation proceedings until 23. 8.2023 when he regained his email account where the respondent had served the impugned Bill of Costs and the taxation notice.

30. It was the applicant’s case that he stood to suffer irreparable loss should his objections to taxation of the bill of costs dated April 11, 2022 not be heard and thus failure to grant the applicant orders sought herein would be tantamount to denying the applicant his constitutional right to a fair hearing.

31. It was further submitted that the respondent’s replying affidavit sworn on the October 7, 2023 was filed out of time and was improperly on record and that the same ought to be struck out.

The Respondent’s position 32. The respondent in their replying affidavit filed on 9/10/2023 deposed in extenso and contended that the proceedings herein as instituted should be struck out for want of procedural compliance as they are misconceived, frivolous and an abuse of the process of court as the circumstances under which the same has been instituted have not been explained, and neither has the Applicant given an explanation as to why he opted to institute an independent and separate proceedings other than in the matter where the impugned taxation proceedings arose.

33. It was further contended that the instant application is misconceived, incompetent and an abuse of court process in that it ought to have been made Kisumu HC Misc. E092 of 2022 where taxation was done as opposed to filing a separate application and that both the taxation proceedings and the ruling arising therefrom were undertaken and issued by the Deputy Registrar on behalf of the learned Judge of the High Court, and any objection to the same, or a request for such enlargement of time would automatically by law be undertaken in the same cause, not by a fresh proceeding instituted in the manner undertaken herein. Reliance was placed on the decision of the Court in Independent Electoral and Boundaries Commission v John Omollo Nyakongo t/a H.R Ganijee & Sons [2020] eKLR.

34. The respondent further contended that that this Court lacks jurisdiction to entertain a fresh suit arising from the taxation proceedings constituted in the manner presented herein and that this application ought to suffer the same fate, dismissal with costs to the Respondent.

35. In addition, that the present application together with the Affidavits in support thereof are wanting, and do not constitute sufficient grounds to exercise discretion in favour of the Applicant for this court to enlarge time within which the applicant could lodge his defence to the bill of costs dated 11. 4.2022. Reliance was placed on the Court of Appeal Case in Major Joseph Mweteri Igweta v Mukira M'ethare & Attorney General [1999] eKLR, where it was held interalia that if documents can be traced there must be some explanation why they were not traced earlier. There is no explanation… once there is non-compliance the burden is on the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour. This burden unfortunately has not been discharged. The rule is where there is no explanation, there shall be no indulgence.

36. It was deposed that no explanation had been offered for the delay by the applicant for the five months’ delay in presenting this application after being made aware of the existence of the taxation proceedings when he filed the application for the change of advocates.

37. That it had been thirteen (13) months since the decision of the taxing officer was delivered and five (5) months since the Applicant was made aware of the existence of the Certificate of Costs arising therefrom which delay was profoundly inordinate.

Analysis & Determination 38. I have considered the application, the replying affidavit and submissions as well as the applicable law. The issues for determination are whether the replying affidavit sworn on the October 7, 2023 ought to be struck out and whether the applicant has shown cause to justify the granting of the extension sought.

39. On the first issue, the Applicant submitted that the respondent’s replying affidavit ought to be struck out as the same was filed out of time as the Respondents did not adhere to the directions given by the Court on September 20, 2023 that the replying affidavit be filed and served within ten (10) days of that date.

40. It is not contested that the replying affidavit to the notice of motion dated September 4, 2023 was filed out of time. The said replying affidavit was filed on October 7, 2023 contrary to the directions of the Court. Indeed, the said Reply was filed more than a week after the expected date that it should have been filed.

41. Should the fact that the Replying Affidavit was filed out of time be taken to mean that the application is unopposed? I think not. Courts have an obligation to grant a hearing to each party to a suit. In order to determine the application fairly and on merit, the Court must consider the Replying Affidavit despite the same having been filed a week after the last date given by the court.

42. In the case of Central Bank of Kenya v Uhuru Highway Development Ltd &others [1998] eKLR Hon. Justice Bosire (Retired) observed as follows: -“I am therefore, unable to subscribe to the view expressed by Mr. Rebello that documents field out of time in response to an application are necessarily invalid and should not be looked at. To my mind a Court is obliged to consider them unless for a reason other than mere lateness, it considers it undesirable to do so. Besides, the learned Judge in the Court below fell into error when he said that a failure to file grounds of opposition automatically entitles the Applicant to ordersex-parte.” [own emphasis]

43. I find that the Replying Affidavit sworn on the October 7, 2023 though filed late is now on record and the Court is obliged to give due consideration to the same. Iam not persuaded by the argument that the same ought to be struck out.

44. Turning to the main issue for consideration, it is a principle of law that the applicant must demonstrate good and sufficient reasons why such a party should be allowed to file the reference out of time as the timelines are set by statute.

45. It is not disputed that the advocate with the bill of costs, the respondents herein, had previously acted for the client herein. It is on that basis that the advocate raised the Advocate/Client bill of costs, whose taxation the client contests by its application under consideration.

46. Having established that there was that relationship between the advocate and client, whether the client instructed the advocate to execute decree or not is a different matter altogether and having noted that by the time the client filed its application, the bill of costs had been taxed, there is but one way that the client should have challenged that taxation. That challenge should have been mounted pursuant to paragraph 11 of the Advocates (Remuneration) Order.

47. Paragraph 12 of that order, permits a reference by consent of the parties. In this matter, there is no such consent and the Client was therefore bound to follow the process set out in paragraph 11. Paragraph 11 provides that a party aggrieved by the taxation should access the High Court or the Court of Appeal as the case may be.

48. The Supreme Court, in a case pertinent to what is before this court had an occasion to consider the importance of adherence to the laid down procedure in approaching a court of law. This was in an appeal of an election petition that is the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR where the court stated thus:“This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of article 159(2)(d) of the constitution, which proclaims that, “...courts and tribunals shall be guided by... [the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.”

49. The importance of following procedure of paragraph 11 of the Advocates Remuneration Order was underscored by this court in the case Vishisht Talwar v Anthony Thuo Kanai T/a A. Thuo Kanai Advocates [2014] eKLR where I stated:“The Learned Judge referring to a decision in the Court of Appeal in Machira & Co. Advocates v Arthur K. Magugu & another CA 199/2002[2012] eKLR and stated that:“Rule 11 thereof provides for ventilation of grievances from such decisions through references to a judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used. Appeals require the typing of proceedings, compiling of records of appeal and hearing of the same in open court. Reviews, however, would require provisions akin to those in section 80 of the Civil Procedure Act of discovery of new and important matters, errors on the face of the record and so on. In our view the Rules Committee intended to avoid all that and provide for a simple and expeditious mode of dealing with decisions on Advocate’s bill of costs through references under Rule 11 to a Judge in chambers.”

50. The Supreme Court of Kenya sitting at Kisumu in the case of County Executive of Kisumu v County Government of Kisumu & others [2017] eKLR while relying to its decision in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others Application No. 16 of 2014 [2014] eKLR the Hon. Judges reiterated the considerations to be made in such a case to be as follows:“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; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

51. The applicant had a duty to explain to this court why it did not lodge his reference in accordance with the law.

52. The applicant alleges that he lost his email account wherein the respondents had sent the notice of taxation and that he only regained the email account on the August 23, 2023 and as such he was not in a position to challenge the said taxation.

53. The applicant further alleges that the taxation carried out by the respondent was for services that the respondent was not authorized by the applicant to undertake.

54. I have perused the documents produced by the respondent and note that in the email correspondence between the parties herein, the respondent informed the applicant that they were filing their Bill of Costs for recovery of their fees so as to facilitate release of the files to the respondent’s new advocate.

55. The applicant has not clarified at what time he became aware that he could not access his email account where the Notice of taxation was sent by the respondent and as therefore this court is left to determine this on its own.

56. I am not persuaded that the applicant has satisfied this court on the reason for delay in filing the instant application. It is brought more than a year after the decision of the Taxing officer was delivered and five (5) months since the Applicant was made aware of the existence of the certificate of costs.

57. Having said that, it is worth restating that the application under sub-paragraph (4) has to be made in the same file or cause under which the objection was made in the first instance. The application has to be made in the cause under which the taxation was carried out so that the Court, in exercising its discretion one way or the other can see when the objection as required under rule 11(1) was made and the sequence of other events that followed thereafter in order to determine whether there are good grounds upon which an extension of time can be allowed under rule 11(4) of the Advocates Remuneration Order. This court did not have to call for the parent file where the taxation was done to establish the position. Yet it did so o inform itself of the propriety of these proceedings.

58. My understanding of the jurisdiction of this court under Rule 11 of the Advocates (Remuneration) Order is that the court exercises its jurisdiction on the platform of the suit in which the impugned decision of the Taxing Officer was made. It is not exercised in a separate or fresh suit. Exercise of that jurisdiction is invoked through the filing and service of an objection under rule 11 (1). The notice of objection sets out the contested items and findings, where necessary. Upon filing of the notice of objection within the suit, and upon service of the notice, the objector is required to file a reference to the Judge by way of Chamber Summons within the same suit. The Judge thereafter exercises jurisdiction under rule 11 on the platform of the suit in which the impugned decision of the taxing officer was made.

59. The Miscellaneous Application before me is a fresh suit. An application under rule 11(4) ought to be brought in the suit in which the impugned decision was made. I do not think I would be properly directing my mind if I were to purport to exercise jurisdiction under rule 11(4) on the platform of this fresh suit yet the impugned decision of the taxing officer was made in a different suit. See Mombasa H.C.C.C Misc. Application No.332 of 2019 and Independent Electoral and Boundaries Commission v John Omollo Nyakongo t/a H.R Ganijee & Sons (supra).

60. Consequently, the suit herein is struck out on the ground that the court lacks jurisdiction to entertain the present application on the platform of a fresh suit such as the present suit.

61. Each party shall bear their own costs of the application as struck out and this file is closed.

62. The Registry to notify the parties who are absent as this ruling was recalled to be delivered earlier than scheduled, on notice to parties on account of the court being engaged in other official duties outside the court station on the date that the ruling was scheduled to be delivered namely, November 15, 2023.

63. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF NOVEMBER, 2023R.E ABURILIJUDGE