[2023] KEHC 25267 (KLR)

Olando Joshua Nyikali & Muchera Carlestous Shifwoka jointly t/a Nyikuli, Shifwoka & Co Advocates v Khalwale & another (Miscellaneous Civil Application E009 of 2020) [2023] KEHC 25267 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25267 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Civil Application E009 of 2020

PJO Otieno, J

November 10, 2023

Between

Olando Joshua Nyikali & Muchera Carlestous Shifwoka jointly t/a Nyikuli, Shifwoka & Co Advocates

Respondent

and

Hon Sen (Dr) Bonny Khalwale

1st Applicant

Washington Mzozo Shibo

2nd Applicant

Ruling

1. The two clients/applicants filed two applications essentially seeking to upset the decision of the taxing officer dated 10. 11. 2016 certifying costs due to the advocate in the sum of Kshs. 769,525 and in the interim asking for orders of stay of the proceeding seeking to recover and enforce the costs so certified. The applications are dated 29. 3.2022 and 10. 3. 2022.

2. When the parties attended court on the 17. 7.2023, it was, by consent, agreed that the application dated 10. 3.2022 be deemed withdrawn since a determination of the one dated 29. 3.2022 will determine the controversy in full.

3. That application seeks in the main that the Honourable Court be pleased to set aside the proceedings of 13. 10. 2016, the ruling dated 10. 11 2016 and all consequential orders and that the applicant be allowed to defend the application dated 23. 9.2016. There were prayers seeking interlocutory reliefs which do not deserve consideration at this juncture.

4. The application is supported by two affidavits sworn by Hon. Senator Dr. Bony Khalwale and one Polycarp Muchume on 29th March 2022. The 1st client Dr. Bony Khalwale avers that on 9/3/2020 he received a call from the regional police commander informing him of a warrant of arrest against him. He contacted his advocate, Mr. Ondieki, who made him learn that a warrant of arrest had been issued against him on 2/3/2022 pursuant to a notice to show cause dated 1/2/2022 and that the said notice emanated from an ex parte order on taxation issued on 13/10/2016. He adds that he was never served with any pleading pertaining the suit. He further claims that contrary to court records that he was served with the notice to show cause through his postal address of 41842-00100 Nairobi, he denied being associated with the address and asserted that his postal addresses were 251-50100 and 2877-50100 Kakamega.

5. On his part, Polycarp Muchume contends that the 1st client called to see him for which request he went to the 1st client’s home and was shown an affidavit of service which alleges that he was served on behalf of the two clients on the understanding that he was a personal assistant to the 1st client. He denied ever being the personal assistant to the 1st client, denied having called him in relation to this matter or receiving any process on his behalf and termed the affidavit a falsehood.

6. In response to the application, the respondents have filed grounds of opposition in which they contend that the application is misconceived, poorly drafted, and bad in law, an abuse of the court process and that it is premised on unknown provisions of the law. They further contend that the application is brought against the provisions of paragraph 11(1&2) of the Advocates Remuneration Order and that this court is functus officio.

7. When parties attended court on the 20. 06. 2022 and again on 287. 2022, they, by consent, agreed that the deponents of the client’s affidavit and process server would attend court for purposes of being cross examined. On the date set, only the process server attended and was cross examined. The clients never attended. That position leaves the contentions by the clients in the affidavits untested after those by the advocated were duly tested by cross examination.

Issues, Analysis And Determination 8. The court has perused the application, the response thereto, the material recorded during cross examination of the process server and the lists of authorities filed by the parties and entertains no doubt that the application seeks setting aside of proceeding taken expert before the taxing master which then yielded a certificate of costs. To come to a determination of the dispute, whether or not to set aside, the court isolates three issues for determination. There are two preliminary issues which will be dealt with first before going to the last issue which goes to the merit. The issues are: -a.Whether the court is functus officio to entertain the subject application.b.Whether the subject application is bad in law for not being anchored on any provision of the law and for not being brought pursuant to paragraph 11(1&2) of the Advocates Remuneration Order.c.Whether the clients’/applicants’ application to set aside is merited.

9. Because the first two issues are technical and have prospects of disposing the application, the court starts thereat.

10. A court becomes functus officio when it has discharged its mandate in a particular case in full. The question of functus officio was addressed by the Supreme Court in the case of Raila Odinga & 2othersvsIndependent Electoral and Boundaries Commission & 3 Others 2013 eKLR where the Court held as follows: -“…A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available…”

11. Here, the matter has not been heard on the merits and the court holds that its mandate has not been exhausted. The court is not fuctus officio but has the duty to interrogate the applicants’ complaints. The Objection is found to have no merit.

Whether the subject application is bad in law for not being anchored on any provision of the law and for not being brought pursuant to paragraph 11(1&2) Of The Advocates Remuneration Order 12. The subject application surely and evidently does not cite any statutory provision upon which it is anchored. That failure does not affect the substance of the application and never fatal by dint of Order 51 Rule 10 of the Civil Procedure Rules, 2010.

13. On the second limb of the objection that that the subject application ought to have been brought pursuant to paragraph 11 of the Advocates Remuneration Order coding the procedure for addressing grievances from taxing master’s decision on taxation, it is the learning of the court that Paragraph 11 of the Advocate Remuneration order is a subsidiary legislation which must conform to the know general principles of law and the rules of natural justice. The court’s position is that the rule is only applicable where a party has been given a chance to participate at taxation but is aggrieved by the decision made on the merits. Where there be proof that the right to be heard was denied, the rule must give way to the demands of natural justice. It cannot be used to bless failure to serve. Thus, while it is true that the Advocates Act and the Subsidiary legislation made thereunder should be a complete code on taxation, it is also true that the statute does not code how to tackle grievances on lack of service. In East African Power Management Limited v Stephens Kithi Ngombo T/a Steve Kithi & Company Advocates [2012] eKLR the court of appeal had the chance to address same issue and did deliver itself as follows: -“We agree with counsel for the respondent that the Advocates Remuneration Order provides its own procedure and there is no reference to the Civil Procedure Rules. However, we find this case was different because the appellant was not aware of the taxation. It follows, therefore, that the appellant could not have followed the procedure provided for under the above Remuneration order. The appellant followed the procedure of setting aside orders that is provided for under the Civil Procedure Rules and thus invoked the inherent powers given to a court to make such orders as may be necessary for ends of justice or to prevent abuse of the court process.We are satisfied that, as the appellant was not served, there was failure of justice, and had the learned Judge addressed himself to the fact that the appellant was not served with the notice of taxation, and in the circumstances the appellant could not have brought itself strictly within the provisions of Rule 11 of the Advocates Remuneration Order, the Learned Judge would have probably arrived at a different conclusion.”

14. It emerges from the decision that the duty to serve court papers is paramount as an important cog on the right to be heard and cannot be sidestepped by hiding under the Paragraph 11 of the Remuneration order. Accordingly, the court holds that paragraph 11 of the Remuneration order does not bar one aggrieved by an order on taxation obtained by questioned service. That objection fails so that the merits of the application questioning whether service was effected may be interrogated.

Is the application to set aside merited 15. The applicants have deponed that the subject application arises from the decision of the taxing master issued in their absence and without notice to them. It is trite law that the court has unfettered discretion to set aside ex parte judgment or order made on account of default in order to provide a party a chance to canvas his case because disputes need to be determined on the merits undeterred by excusable, inadvertence, slips and mistakes. That discretion should, however, be exercised upon reasons and judiciously to ensure that a litigant does not suffer injustice or hardship, because of, amongst others, an excusable mistake or error. The discretion is designed to be exercised to achieve and meet the ends of justice so that the court does not turn its back to a litigant who clearly demonstrates such excusable mistake, inadvertence, accident or error. See CMC Holdings Limited-vs- Nzioki (2004) 1 KLR 173.

16. Where however there is demonstrated lack of notice the default order is set aside as of right and not as a matter of discretion.

17. From the onset, the application appears not to challenge merits of the decision of the taxing on the bill of costs but assert having not been made aware of the process leading up to the taxation and the service of the notice to show cause issued by the taxing master against the applicants.

18. The respondents have in fact contested service of the notice of taxation. Where a party to proceedings denies service, it is desirable and necessary that the deponent to the affidavit of service be cross-examined to establish the truth. In fact, where there is a contestation by affidavits on whether an event took place or not, the truth is only capable of being established by having the deponents of the rival affidavits being cross-examined. In Karatina Garments Limited v Nyanarua [1976] KLR 94 the court held;“Where one party to proceedings denies having been served with a relevant document, it is proper for the Court to look into the matter; if the Court is faced with conflicting affidavits as to the alleged service of process, it is proper that the deponents should be examined on oath in order to establish the truth.”

19. As agreed by consent of all parties, Habil Juma Wanyama, a process server, was brought to the stand by way of cross examination to explain how he effected service upon the applicants and was asked questions by mr. Ondieki for the clients. He said that he served the Notice one Mr. Polycarp Mukoto Muchume, a personal assistant to the 1st respondent and who accepted service on behalf of both applicants after being authorized over the phone by the 1st client/Applicant.

20. Both Dr. Khalwale and Polycarp Mukoto Muchume in separate Affidavits sworn on 29th March, 2022 denied service of any documents by the process server but when called for cross-examination both failed to attend Court without any explanation being offered. It is of note that the process server was adamant that he had known Mr Muchume as the personal assistant to the 1st client because the firm he acts for had acted the 1st applicant and Mr Muchume had visited the chambers in that known capacity.

21. Having been given a chance to have their affidavits verified by cross-examination but failed to take the stand, the court draws the adverse inference that undertaking cross-examination would have disproved the contentions in the two affidavits by the applicants.

22. It is thus the courts finding from the cross examination of the process server that he was truthful. It is found that there was due service of the notice of taxation hence there was never a denial of the right to be heard. On account of effective service alone, there is no basis to set aside.

23. However, the discretion to set aside, as said before is very wide and unfettered. In this matter even with the proved service, the court is inclined to set aside, but on terms, so that the clients have their day in court. The proceedings of 10. 11. 2016 together with all consequent proceedings and processes flowing therefrom are hereby set aside but on terms.

24. The conditions the court imposes are that;a.The clients shall deposit the taxed costs into an escrow account in the joint names of the advocates for the parties within 30 days from today.b.Mention before the taxing officer forthwith, and not later than 14 days from today, for purposes of taking a date for taxation.c.If there shall be failure to deposit as aforesaid, this order of setting aside shall lapse on the date of default, the application dated 29. 3.2022 shall stand dismissed and the certificate of taxation shall stand reinstated with the consequence that the advocate shall be at liberty to execute.

25. On costs, even though the clients have succeeded, this is a case where the applicants occasioned the necessity of this application and the applicants should not be rewarded for their own inaction. Each party shall bear own costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 10TH DAY OF NOVEMBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Ondieki for the ApplicantsMr. Mulama for Abok for the RespondentsCourt Assistant: Polycap Mukabwa