[2023] KEHC 23754 (KLR)

Paul Kisongoa & Co. Advocates v Juma & another (Civil Miscellaneous Application 86 of 2021) [2023] KEHC 23754 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23754 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Miscellaneous Application 86 of 2021

FROO Olel, J

October 19, 2023

Between

Paul Kisongoa & Co. Advocates

Advocate

and

Abednego Muiwa Juma

1st Respondent

Gideon Mutua Juma

2nd Respondent

Ruling

A. Introduction 1. Before court for determination is the chamber summons application dated 16th January 2023 brought pursuant to provisions of the paragraph 11 of the Advocates remuneration order 2009, Order 42 rule 6 of the Civil Procedure rules 2010 and all other provisions of law. The applicant seeks for orders that;a.That there be a stay of execution of the decree issued on 18. 02. 2022 and warrant issued on 18. 1.2022 pursuant to the said decree and the certificate of taxation dated 16th September 2022 pending hearing and determination of this application.b.That pending inter-parties hearing of this application an order be and is hereby issued staying execution by way of sale of the assets of that appellant/2nd Respondent.c.That this honourable court enlarges time within which to file a reference against the decision of the taxing officer that resulted in the certificate of taxation dated 16th September 2021. d.That costs of this application be provided for.

2. The application is supported by the affidavit of Gideon Mutua Juma dated 16. 01. 2023 and his supplementary Affidavit dated 14th March 2023. In opposing this application, the advocate/Respondent did file his Replying Affidavit dated 03. 02. 2023 and a further affidavit dated 19. 04. 2023

B. Brief Facts 3. The 2nd Respondent/applicant contention was that the they were sued in Machakos HCC No.354 of 2011, which was a claim for damages arising from a road traffic Accident. He had been employed by the 1st respondent as the driver of the suit motor vehicle, which was involved in an accident and upon service of summons, the 1st Respondent did instruct the Advocate/Respondent herein to represent him in the said primary suit. The applicant emphasised that at no point did he instruct the advocate/ respondent to represent him in the primary suit. All payments of legal fee were done by the said 1st Respondent and all communication was between the two parties.

4. Further, he was completely unaware that after the primary suit had been concluded, the advocate/respondent did proceed to file and Tax his advocate/client bill of costs. He had never been served with the said bill of costs and/or any hearing notice to attend court to defend his position. The Advocate/Client bill of costs was thus taxed without his knowledge and/or participation and also warrants of execution dated 18th November 2022 issued, was proclaimed by Faith Agency Auctioneer. The delay in filing the reference was thus excusable, based on the non-service of the said bill of costs upon the applicant and it was in the interest of justice to allow him to challenge the said taxation.

5. The advocate/Respondent did oppose this application and filed his replying affidavit dated 3rd February 2023. He stated that both respondents duly instructed him to defend them in Machakos HCC No 254 of 2011 and based on the said instruction’s he proceeded to file a memorandum of appearance, statement of defence and in particular the 2nd respondent/applicant did attend his chambers and signed the witness statement which he had prepared and was used to defend the primary suit. He had defended the applicant and the 1st respondent from 2011 – 2013, a period of 12 years until the primary suit was dismissed. The applicant was thus estopped by the doctrine of Estoppel from denying the material facts as brought forth.

6. As regards service of the advocate/client bill of costs, it was the advocate/respondent contention that the process server did effect service upon the applicant and the affidavits of service dated 09. 08. 2021 and 31. 01. 2022 were filed and evidenced the said service, which was deemed proper by the court. The applicant was thus unnecessarily shifting goal posts and had not demonstrated any sufficient cause to warrant stay orders.

7. In response to the said replying affidavit, the 2nd Respondent/Applicant did file a supplementary Affidavit where he did reiterate that the Advocate/Respondent was instructed by the 1st Respondent in his capacity as the owner of motor vehicle KAH 862S and even though the advocate filed pleadings for both Respondents it was not based on his express instructions. It was his employer the 1st Respondent who instructed him to go to the advocate office and sign the witness statement and that did not amount to having issued instructions to the said advocate to represent him. At no point did they have an Advocate/client relationship. The applicant reiterated that the delay in filing the reference was thus excusable and he ought to be given leave to challenge the taxation as done.

8. The advocate/respondent also did file a further Affidavit dated 19th April 2023, where he annexed various correspondence with the respondent’s and a payment receipt dated 24. 10. 2019. Retainer or instructions did not have to be formal or expressly furnished and the same could also be implied.

C. Submissions Applicants Submissions 9. The 2nd Respondent/Applicant submitted that there was no client/advocate relationship the basis upon which the advocate/client bill of costs could be taxed. He was never personally served with the said advocate/client bill of costs and only became aware of the same upon being proclaimed by the auctioneers. In further support of this contention the 2nd Respondent/applicant did reiterate at length the contents of his supporting and supplementary affidavits to show that there was no advocate/client relationship.

10. Secondly the applicant submitted that the delay in filing the reference was excusable due to the fact that he was not aware of the proceedings which had being undertaken by the advocate/respondent. It was thus important and in the interest of justice to grant him leave to challenge the said taxation and have it set aside as he was prejudiced by the ex parte nature of the proceedings undertaken. Where there was no advocate/client existing relationship, the court could not proceed with taxation as it lacked jurisdiction to do so. Reliance was placed on Wilfred N. Konosi T/A Konosi & Co. Advocates v Flemco Limited [2014]eKLR.

11. The applicant prayed that the court finds merit in this application and proceed to grant the orders sought.

Respondents Submissions 12. The Respondent did contend that the applicants advocate was not properly on record as the notice of appointment of advocate was not filed and/or stamped as is required and in law. This breached provision of order 9, rule 7 of the Civil Procedure Rules. On whether an advocate/client relationship existed as between the parties the advocate/Respondent did submit that retainer could be express and/or implied and by the pleadings filed, correspondence exchanged and payment of legal fee undertaken it was evident that there existed a clear advocate/client relationship for an accumulated period of about twelve (12) years. The applicant’s, challenge of his bill of costs was thus suspect and in bad faith. Reliance as placed on Ochieng Onyango kibet and Ohaga Advocates versus Akiba Bank Ltd(2007) eKLR and Chris N Mutuku Advocates versus Chai Diamond Investments Co Ltd (2019) eKLR.

13. As to whether service of the taxation documents was affected upon the 2nd Respondent/Applicant, the affidavit of service dated 09. 08. 2021 and 31. 01. 2022 respectively proved that indeed service had been affected upon the applicant and the taxing master being satisfied with the said service proceeded and taxed the advocate/client bill of costs. Finally, the application as filed did not meet the yard stick/conditions precedent, which the court could consider before granting stay. The applicant had not demonstrated substantial loss nor offered security which was a pre requisite in applications of this nature.

14. The applicant had also not satisfactorily explained the inordinate delay in filing this instant application as envisaged in law. The applicant was indolent and thus the court’s discretion should not be exercised in his favour. Finally no draft reference had been annexed to the application which was a pre-requisite in an application of this nature. Reliance as placed on Maina & Maina Advocates [2021] eKLR. The advocate/Respondent thus prayed that this application be dismissed with costs.

D. Determination 15. I have considered this application, the supporting affidavit made in support thereof, the supplementary affidavit, replying affidavit and the advocate/ respondent further Affidavit. Further I have also considered the written submissions filed by both parties and discern that the issues for determination are;a.whether the court should exercise its discretion and extend time for the 2nd respondent/applicant to file his reference challenging the taxing master decision dated 16th September 2021. b.Should the court grant an order of stay execution of the said decree herein pending hearing and determination of the reference to be filed.

16. Section 95 of the Civil procedure Act provides that;“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 description, from time to time, enlarge such period, even though the period originally fixed or granted my have expired.”

17. Order 50 rule 6 provides that;“where a limited time has been fixed for doing any act or taking any proceedings under these rules or by summary notice or by order of the court, the court shall have powers to enlarge time upon such terms(if any) as the justice of the case may require, and such enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”

18. There is no doubt that the discretion to extend time is not a right of the party, but is an equitable remedy that is only available to a deserving party after laying a basis to courts satisfaction that there exists reasonable explanation as to why there had been a delay. The court will also consider if any prejudice will be suffered by the respondent and if the application has been brought without unreasonable delay. See Nicholas Kiptoo Arap Korir Salat v IEBC and 7 otherseKLR.Where the court did observe that;“Extension of time being a creature of equity, only enjoy, one can only enjoy if he acts equitably: he who seek s equity must do equity. Hence, one has to lay a basis that he was not at fault so at to let time lapse. Extension of time is not a right of a litigant against court, but a discretionary power of the courts, which litigants have to lay a basis where they seek courts to grant the same.

19. The certificate of taxation is dated 9th September 2021. According to the applicant, he was not aware of the taxation until he was served by a proclamation by Faith Agencies Auctioneers. He instructed counsel who perused the court file and they realised that the advocate/client bill of costs had been taxed ex parte and judgment entered for the taxed costs on 3rd February 2022. The applicant strongly disputed service, while on the other hand the advocate/respondent insisted that the applicant was served and failed to attend court.

20. The issue of service remains contentious and given the dimetric position taken by both parties it remains to be a fact which is neither not proved nor disproved based on section 3(4) of the Evidence Act. Be that as it may in determining whether or not to allow the applicant to file the reference out of time the court has to balance the interest of both parties. The applicant has a right to be heard on the already initiated appellate process which in law is to be weighed against the prejudice the advocate/respondent stands to suffer should the relief sought by applicant be granted.

21. According to the current jurisprudential trend the right to appellant justice is now constitutionally entrenched. The parameters for according this right to a deserving party have also been crystallized by case law. See Richard Nchapi Leiyagu v IEBC & 2 Others[2013]eKLR; Mbaki & Others v Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another v Abdul Fazaiboy, Civil Application No. 33 of 2003; in which it was variously held, inter alia, that: the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law; the right to be heard is a valued right; and 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.

22. On the arguability of the intended appeal, the advocate/respondent did raise the issue that the applicant has not annexed a draft reference indicating the issues they intend to take up on appeal. The position in law however is that where there is no memorandum of appeal annexed to the application, the court can discern the grievances intended to be taken up on appeal from any other supportive facts proffered by the applicant in support of the application.

23. The non-technicality principle enshrined in Article 159(2)(d) of theConstitution, 2010 provides:“In exercising judicial authority, the courts and tribunals shall be guided by the following principles -d.Justice shall be administered without undue regard to procedural technicalities.

24. The principles that guide the court in the discharge of its mandate donated by the above provision have now been crystallized by case law. I take it from the cases of Jaldesa Tuke Dabelo v IEBC & Another[2015] eKLR; Raila Odinga and 5 Others vs. IEBC & 3 Others [2013] eKLR; Lemanken Arata v Harum Meita Mei Lempaka & 2 Others[2014] eKLR; Patricia Cherotich Sawe v IEBC & 4 Others [2015]eKLR for principles/propositions, inter alia, that: the exercise of the jurisdiction under Article 159 of theConstitution is unfettered especially where procedural technicalities pose an impediment to the administration of justice save that Article 159(2)(d) of theConstitution is not a panacea for all procedural ills.

25. Having considered all the pleading herein, and the law, I am inclined to grant the applicant prayer (4) of his application dated 16th January 2023.

26. The second limb of the prayers sought regards Stay of execution pending appeal. This is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt v Rent Restriction Tribunal [1982] KLR 417 and James Wangalwa & Another v Agnes Nalika Chereto [2012] eKLR).

27. The main issue with respect to this limb will be security which the court should impose for due performance of the decree being challenged. Similarly, the court has to balance the interest of the Appellant who seeks to preserve the status quo pending hearing of the appeal and to ensure the appeal is not rendered nugatory and the interest of the Respondent who seeks to enjoy the fruits of her judgment. In other words, the court should not only consider the interest of the Appellant but also consider, in all fairness, the interest of the Respondent who has been denied the fruit of his judgment. See Attorney General v Halal Meat Produces Limited Civil Application No. Nairobi 270 of 2008; Kenya Shell Ltd v Kibiru & another (Supreme); Mukuma v Abuoga [1988] KLR 645.

E. Disposition 28. Having considered the fact herein I allow the application dated January 16, 2023 on the following terms;a.I do grant the 2nd Respondent/Applicant seven (7) days to file and serve his reference against the decision of the taxing master dated September 9, 2021. b.As a condition of stay of execution I do direct the 2nd Respondent/Applicant deposit in court Kshs 105,597/= only within the next 60 days failure of which the order of stay of execution will stand automatically vacated.c.The cost of this application will abide the reference to be filed.d.It is so ordered.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 19TH DAY OF OCTOBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 19th day of October, 2023. In the presence of;…………………………………Applicant………………………………….1st Respondent………………………………….2nd Respondent………………………………….Court Assistant