[2022] KEHC 16151 (KLR)

Pinnacle Projects Limited v Parbat Siyani Interiors Ltd (Miscellaneous Application E791 of 2020) [2022] KEHC 16151 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16151 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E791 of 2020

A Mabeya, J

December 9, 2022

Between

Pinnacle Projects Limited

Applicant

and

Parbat Siyani Interiors Ltd

Respondent

Ruling

1. Before Court is an application dated February 17, 2022. It was brought under sections 1A, 1B, 3A an 63(e) of the Civil Procedure Act, and Order 9 Rule 9, 51 Rule 1 of the Civil Procedure Rules.

2. Prayers 1, 2 and 3 of the application were allowed on February 22, 2022. The remaining order was that the certificate of taxation herein be set aside and the matter be referred back to the taxing master for taxing afresh.

3. The grounds for the application were set out on the face of the application and on the supporting affidavit of David Kuria sworn on February 17, 2022. It was averred that on February 15, 2022, the respondent proclaimed goods through its agent Ms Galaxy Auctioneers on the strength of warrants of attachment issued on January 11, 2022.

4. That the lower court matter from which the warrants arose namely, RMCC No 6584 of 2018 Parbat Siyani Interiors Vs Pinnacle Projects Limited had been fully settled including the Party and Party costs and the only outstanding issue was the accrued interest.

5. That the applicant had filed that matter through the firm of Ms Osamba Otieno Advocates who it later realized had abandoned the matter. That the respondent’s advocate took out taxation of its Party and Party costs vide its bill dated April 26, 2021. That from the Affidavit of Service on record, the bill of cost was slipped under the closed door of the office of the applicant’s aforesaid former advocate Ms. Osamba Otieno Advocates.

6. That the bill of costs was not attended to as the said firm had abandoned the matter without communicating or giving a formal notice ceasing to Act for the applicant. That the applicant was therefore not present during the taxation and it was just that the orders sought be issued.

7. The respondent opposed the application vide the replying affidavit of Chacha Sammy sworn on March 2, 2022. It was contended that the decretal sum in the said RMCC No 6584 of 2018 of Kshs 2,559,409. 30 had not been settled as alleged. That the decree was subject to execution proceedings at the lower court. A copy of the application for execution and schedule of payments made by the applicant so far was annexed as CS1 & CS2.

8. That the applicant’s former advocate Ms Osamba Otieno & Co Advocates had made an application dated June 26, 2020 to file an appeal out of time and the same was dismissed with costs by this Court on April 15, 2021. That it is the costs of that application that the respondent sought to realize vide the bill of costs dated April 26, 2021 and not the accrued interest from the lower court as alleged by the applicant.

9. It was further contended that no notice of change of advocate nor an application to cease acting had been served. That in the premises, the respondent continued to prefer service upon the said firm. That the respondent cannot therefore be faulted as the issue of representation was as between the applicant and its advocate.

10. The application was canvassed by way of written submissions. The Court has considered the record in totality. The issue is whether the certificate of taxation should be set aside.

11. The basis of the application is that the applicant was condemned unheard due to its former advocate’s failure to prosecute the bill of costs. The respondent on the other hand contends that there was notice that there had been change of advocate.

12. In as much as it is unfortunate for the applicant that its advocate deserted it without communication, the same cannot be visited upon the respondent who has followed the law to exercise its rights. It is not in dispute that on June 29, 2020, this Court dismissed the applicant’s application seeking leave to file an appeal out of time. It is also not in dispute that costs were awarded.

13. The applicant has also not pointed out the items it disputes in the Bill of Costs to enable this court determine whether there would be merit in setting aside the Certificate of Taxation and referring the matter back to the taxing master for taxing afresh. Further, the Certificate of Costs has not been challenged, set aside or altered by Court.

14. Section 51 of the Advocates Act provides:“1Every 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.2The 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 covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

15. From the foregoing, the Certificate of Taxation herein was final. The applicant has not demonstrated any justifiable ground upon which it can be set aside. The applicant can pursue its former advocate for professional misconduct through the procedures laid down in law.

16. The Court finds that the application is unmerited and the same is dismissed with costs to the respondent.

It is so ordered.DATED and DELIVERED at Nairobi this 9th day of December, 2022. A. MABEYA, FCIArbJUDGE