[2022] KEHC 11167 (KLR)

Republic v Disciplinary Tribunal of the Law Society of Kenya; Musimba (Interested Party); Wambugu (Exparte) (Judicial Review Application E1112 of 2020) [2022] KEHC 11167 (KLR) (Judicial Review) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11167 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E1112 of 2020

AK Ndung'u, J

June 16, 2022

Between

Republic

Applicant

and

Disciplinary Tribunal of the Law Society of Kenya

Respondent

and

Patrick Mweu Musimba

Interested Party

and

John Wacira Wambugu

Exparte

Ruling

1. The Application before this court is the Applicant’s Chamber Summons dated June 10, 2021 seeking the following orders;i.Spentii.Spentiii.Spent.iv.Thatthere be a stay of execution of the Taxing officer's ruling delivered on May 12, 2021 pending the hearing and determination of the intended reference.v.Thatthe court be pleased to enlarge the time to file a Notice of Objection against the decision of the Taxing Officer delivered on May 12, 2021. vi.That the court be pleased to enlarge the time within which to file a reference against the decision of the taxing officer delivered on May 12, 2021. vii.Thatthe Reference attached hereto be deemed as properly filed though filed out of time upon payment ofcourt fees.viii.That the costs of this application be provided for.ix.Thatsuch further and other relief be granted to theapplicant as this court deems fit and expedient in the circumstances.

2. The application is supported by the grounds on its face and a supporting affidavit sworn by John Wacira on June 10, 2021. The circumstances leading to the filing of the said application are that on May 12, 2021 the taxing master delivered a ruling on the respondent’s bill of costs dated February 25, 2021 and that the applicant herein was not aware of the same as when the matter came up for mention on May 5, 2021 the court directed that directions would be delivered electronically.

3. It is the applicant’s case that it was through a letter of demand dated June 4, 2021 that his Advocates on record learnt of the said Ruling. The Respondent’s advocate through an email dated May 13, 2021 from the court was directed to notify the applicant’s advocates but the same was not done.

4. Theapplicant contends that the awarded sum of Kshs. 564,023/= is unfair and unjust and if the court does not stay execution the respondent is likely to execute the certificate of taxation and the applicant is likely to suffer substantial loss. Further, that the intended reference is arguable and has a reasonable chance of success.

5. According to theapplicant the taxing master failed to take into account the scale of fees prescribed under Schedule VI(j) of the Advocates (Remuneration) Order2014 and the fact that JR MISC APP. No.1112 of 2020 was dispensed with at an interlocutory stage as leave to file the substantive application was granted. In addition, it was contended that the same was determined within 3 months that is between 25th Spetember,2020 and January 12, 2021.

6. In response, therespondent filed a replying affidavit sworn by one Steve Kimathi, a partner in the firm of Andrew & Steve Advocate the firm that was acting on behalf of the applicant herein. The affidavit was sworn on October 28, 2021.

7. In the respondent’s defence, Mr. Kimathi contended that in the daily cause list of this court a notice directing parties to provide details that is email addresses and telephone numbers is published. It is alleged that prior to the mention of March 30, 2021, a notice was published giving directions on matters that were scheduled for hearing and mention between March 29, 2021 and April 2, 2021.

8. Mr. Kimathi further stated that in compliance with the notice the firm wrote a letter dated May 5, 2021 to the Judicial Review Court seeking special directions on the matter. The same was also sent via email and copied to the Applicant’s Advocates and directions issued on the same day. A Ruling date was set for May 12, 2021 and a Certificate of Taxation issued on May 24, 2021. Further that the applicant was at all times ably represented by an advocate and was well aware of the pendency of the Bill of Costs. The respondent also contended that the delay in service of the Application before this court filed on June 10, 2021 and served on October 1, 2021 was unexplained.

9. It is contended that the Applicant has not furnished thecourt with any reason why it has failed to file a Notice of Objection in compliance with Rule 11(1) of the Advocates Remuneration Order against the decision of the Taxing Master and such failure renders the Application fatally defective. Mr. Kimathi argued that the extension of time being an equitable remedy, is only available to a deserving party who is vigilant and approaches the Court with clean hands. Any delay should therefore be explained with valid and clear reasons.

10. The deponent urged that the Applicant’s advocates having been served with the respondent’s Written Submissions and List & Bundle of Authorities dated May 4, 2021 and pursuant to the email dated May 5, 2021 and counsel’s knowledge that the matter was listed for mention on May 5, 2021 an attempt to inquire on the Court’s directions ought to have been made.

11. It is therespondent’s case that for the court to grant orders of stay of execution the Applicant must meet all the requirements under Order 42 Rule 6 of the Civil Procedure Rules. Further that the substantial loss to be suffered has not been demonstrated. The Taxing Master according to the Respondent took into consideration all necessary facts and the law in reaching her determination.

12. In conclusion, Counsel urged the court to direct the applicant to deposit the sum of Kshs. 564,023/= within 14 days in a Joint Interest earning account in the name of both firms on record if it is inclined to issue stay orders.

13. The applicant in his submissions dated November 22, 2021 identified 3 issues for determination and that is; Whether the applicant is entitled to enlargement of time within which to file a Notice of objection and reference against the taxing master’s decision delivered on May 12, 2021,whether the applicant has made out a case for granting of stay of execution, whether the Applicant is entitled for enlargement of time within which to file a Notice of objection and reference against the taxing master’s decision delivered on May 12, 2021.

14. Learned counsel submitted that pursuant to Paragraph 11 of the Advocates Remuneration Orderthis court has discretion to enlarge time within which a notice of objection or reference can be filed. The case of John Kiplagat Barbaret & 8others v Isaiah Kiplagat Arap Chelugat[2011] eKLR was cited where the court held that the principles to be considered when the court is exercising its discretion to enlarge time are the length of delay, reason for the delay, chances of the appeal succeeding and the degree of prejudice to be suffered if the application was granted.

15. It was submitted that the details requested by the Judicial Review Court were submitted and that the applicant was all along aware of the proceedings in the matter as all directions were shared through the provided email, however, the ruling date was never communicated either by email or otherwise. Counsel urged that it was only prudent and in the interest of justice that when the Ruling was being forwarded to the Respondent the same would have been forwarded to theapplicant’s email address. The case of In Shah & Parekh v Kenindia Assurance Company Limited [2021] eKLR where the court emphasised on the importance of notifying parties on when the Ruling would be delivered through sending a Notice was cited to support this position.

16. There was no inordinate delay in filing the Application before this court and to buttress this argument counsel cited the case of County Government of Tana River v Miller & Company Advocates[2021] eKLR where the Court held as follows;“The delay in filing the application was on or about an overreach of 8 days. In seeking to balance the interest of the respective parties the failure to comply was not inordinate. In addition, the applicant in his affidavit has explained the reasons which let time to lapse. That hurdle has therefore been satisfied as a sufficient cause for this Court to extend time in favor of the applicant to file a Reference under paragraph 11 (1) (2) of the Advocates Remuneration Order.”

17. The case of Labh Singh Harnam Singh Limited v Attorney General & 2others [2016] eKLR was also cited where the court elucidated on the general principles to be considered while granting stay of execution.

DETERMINATION 18. Upon considering the applicant’s application, the response thereto and the submissions, it is obvious that the only issue in contention is whether the applicant is entitled to enlargement of time within which to file a Notice of objection and reference and if so whether this court should grant a stay of execution pending the hearing and determination of the reference.

19. Thecourt’s jurisdiction to extend time is provided for under section 11 of the Advocates Remuneration Order, which grants this court the discretion to extend time in the following specific terms:“The High Court shall have power in its discretion by an order to enlarge time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be by Chamber Summons upon giving to every other interested party not less than three clear days’ notice in writing or as the court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”

20. The Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8others (2017) eKLR had the following to say on enlargement of time: -“[23]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. further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The court delineated the following as:“the under-lying principles that a court should consider in exercise of such discretion: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.”

21. In the case before me the applicant argues that the reason for the delay in filing his Notice of Objection and Reference was because Counsel was not aware that the Ruling on the respondent’s Bill of Costs dated February 25, 2021 had already been delivered and only became aware of the same when a Letter of Demand was served on June 4, 2021. The applicant faults the court for failing to forward the said Ruling as the same was being forwarded to the Respondent yet an email address had been provided.

22. In rebuttal, the respondent urges that all through the proceedings the applicant wasably represented and up until the May 5, 2021 was aware of the position of the taxation and was aware that directions were to be issued virtually on when the Ruling would be delivered. A fact that has been confirmed by theapplicant in his submissions. Further, the Respondent argued that even though thecourt or the respondent had failed to forward the said Ruling to the applicant, he and Counsel acting on his behalf were aware that there was a pending Bill of Costs and also copied in on communication requesting for special directions and as such it was the obligation of Counsel to follow up on what directions were given by court.

23. On the material before court, theapplicant has not adduced any reasonable reason for the delay. More diligence on part of Counsel would have been expected to follow up on the Ruling of the Taxing Master and it is not enough for Counsel to allege that the said Ruling was not forwarded to them. Learned counsel for the Applicant was well aware that directions on delivery of the Ruling were to be issued virtually after the court directed so on May 5, 2021 and as such Counsel ought to have followed up on the same. I also note that Counsel for the applicant was also copied in on email send by the respondent’s counsel seeking special directions in regards to the said matter to which the Deputy Registrar replied by giving directions that the Ruling would be delivered on May 12, 2021.

24. From the foregoing, the applicant has failed to offer a reasonable reason for the delay in filing a Notice of Objection and Reference. The delay having not been explained to the satisfaction of the court, the application herein is for dismissal.

25. In the upshot the Notice of Motion dated June 10, 2021is hereby dismissed with no orders as to costs.

DATED SIGNED AND DELIVERED THIS 16THDAY OF JUNE 2022. .............................A. K. NDUNG'UJUDGE