[2022] KEHC 15402 (KLR)

Republic v District Land Registrar Uasin Gishu thro' Attorney General; Rasawo & 4 others (Interested Parties); Kibet & another (Exparte) (Judicial Review Application 38 of 2011) [2022] KEHC 15402 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15402 (KLR)

Republic of Kenya

In the High Court at Eldoret

Judicial Review Application 38 of 2011

RN Nyakundi, J

November 16, 2022

Between

Republic

Applicant

and

District Land Registrar Uasin Gishu thro' Attorney General

Respondent

and

Joseph Ouma Rasawo

Interested Party

Maurice Omondi Akech

Interested Party

Paschalia Opany Akech

Interested Party

Philip Raburu

Interested Party

Murigi Wanyoike

Interested Party

and

Sally J Kibet

Exparte

Esther J Kirui

Exparte

Ruling

Coram: Hon. Justice R. NyakundiAnassi Momanyi & CO. AdvWambua Kigamwa & CO. Adv 1. What is before this court is a Notice of motion dated June 24, 2022 wherein the applicant/5th interested party seeks the following orders;(1)Spent(2)Pending the hearing interpartes and the determination of the application there be stay of execution of the enforcement of the warrant of attachment for the payment of taxed costs by the applicant.(3)There be enlargement of time to pursue a reference against the taxation of the bill of costs by honourable deputy registrar.(4)in the alternative the deputy registrar be ordered to give reasons for her decision on the taxation to facilitate filing of a reference.(5)Costs of the application be provided for.

2. The application is based on the grounds contained therein and the deponements in the supporting affidavit.

Applicant’S case 3. The applicants’ case is that the deputy registrar delivered a ruling on taxation via email on February 26, 2021. Once the applicant’s advocate became aware of the ruling, he sought reasons on March 1, 2021 but to date no reasons have been advanced. The applicant became aware of the ruling after auctioneers started looking for his property for attachment on June 16, 2021. The time within which a reference can be pursued has run out owing to the deputy registrar’s failure to give reasons for her decision on taxation.

4. The applicant is desirous of pursuing a reference and believes that the payment of costs ordered payable by the honourable court was not directed at him. The applicant was not responsible for the gazzettement of the cancellation of the title deeds as the same was solely done by the land registrar. He has valid grounds to advance at the hearing of the reference.

5. The honourable court has inherent powers to issue orders in the interest of justice and there is no prejudice the respondents stand to suffer if the application is allowed.

Respondent/Ex parte Applicant’s case 6. The ex parte applicant filed a replying affidavit on July 4, 2022 stating that the application contains a false deposition to the effect that the 5th interested party was not aware of the ruling on taxation until June 16, 2022. The 5th interested party participated in the taxation of the bill of costs and filed submissions which were served upon the respondents’ advocates on December 9, 2020. The same were marked as annexure A.

7. The ruling on the bill was slated for delivery on February 19, 2021 then rescheduled and delivered on February 26, 2021 which was sent by email to the address of advocates in the suit. The 5th interested party’s advocates demanded for reasons for the allowing only of certain items of the bill on March 1, 2021 vide a letter annexed as B to the replying affidavit. No explanation has been given as to why since March , 2021, being over 15 months later, this type of application could not have been brought or a follow up done with the taxing master.

8. There is no explanation for the delay and therefore the applicant has failed to meet the threshold for a grant of stay of proceedings. The application should be dismissed with costs.

9. Upon considering the pleadings and deponements of the parties I have consolidated the issues for stay of execution and enlargement of time together.

Whether the orders sought should be granted 10. Stay of execution is governed by order 42 rule 6 (2) of the Civil Procedure Ruleswhich provides as follows:(2)No order for stay of execution shall be made under sub rule (1) unless –(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

11. The applicant is required to show substantial loss, that the order has been made without unreasonable delay and security for the decretal amount can be provided. The applicant has not addressed the issues of substantial loss or security.

12. The ruling the applicant seeks to file a reference against was delivered on Fbruary 26, 2021. The present application was filed on June 28, 2022, over a year later. The applicants’ explanation for the delay is that they only became aware of it on August 17, 2020.

13. Having participated in the taxation of the bill of costs, the applicant should have been aware of the ruling date or made an effort to follow up on the same. Further, if the court is to consider the date of March 1, 2021 which is the date on the letter seeking reasons from the taxing master, there has been no plausible explanation as to the delay in filing the application.

14. The applicants’ case rides on the claim that there are no reasons for the taxation ruling given by the taxing master. I have perused the impugned ruling and the deputy registrar gave reasons for the reference. That notwithstanding, I am guided by the decision in Ahmednasir Abdikadir & Co Advocates v National Bank of Kenya Ltd (2) (2006) 1 EA 5 where the court held as follows: -“Although rule 11 (1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons. Where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of sub rule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.”

15. Further, Odunga J stated as follows in Evans Thiga Gaturu, Advocate vs.- Kenya Commercial Bank Limited[2012] eKLR:“However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference....’’

16. It is my view that the applicant has failed to sufficiently demonstrate the reason for the delay, and is not entitled to the discretionary orders for the extension of time. Having found that the prayer for extension of time is not merited, it logically follows that there would be no basis for granting the prayer for stay of execution.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 16th DAY OF NOVEMBER, 2022. R NYAKUNDIJUDGE