[2022] KEHC 26916 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JR APPLICATION NO. 325 OF 2019

REPUBLIC......................................................................................... APPLICANT

-VERSUS-

THE LAW SOCIETY OF KENYA

DISCIPLINARY TRIBUNAL.................................................1ST RESPONDENT

TELKOM KENYA LIMITED.................................................2ND RESPONDENT

-AND-

THOMAS LETANGULE.............................................1ST INTERESTED PARTY

CHARLES KOECH....................................................2ND INTERESTED PARTY

-AND-

SIGEI K. HILLARY................................................1ST EX PARTE APPLICANT

SONGOLE BRILLIAN...........................................2ND EX PARTE APPLICANT

RULING

1. On 26th February, 2021, the Deputy Registrar delivered a ruling electronically on the 2nd Respondent’s Bill of Costs dated 12th June, 2020. According to the 1st ex parte Applicant (hereinafter “1st the Applicant”), the Honourable Deputy Registrar erred in principle and misdirected herself in awarding costs of Kshs. 161,155/- to the 2nd Respondent on mistaken considerations and consequently failed to exercise her discretion judiciously. It was contended by the 1st Applicant that from the directions issued on 25th January, 2021, it was erroneously stated that the Respondents to the Bill of Costs had not filed their responses yet that position was incorrect. It was further his contention that counsel informed the court via email of the true position that the 1st Applicant had indeed responded vide a replying affidavit dated 16th August, 2020 which was duly filed and payment receipt generated and the same were attached to the email for the court’s ease of reference.

2. However, the Honourable Deputy Registrar in her ruling delivered on 26th February, 2021 still stated at paragraph 3 therein that the bill of costs was never responded to. As such, he averred that the said ruling was delivered based on an incorrect position without considering the 1st Applicant’s response. It is averred that the 2nd Respondent obtained a certificate of taxation dated 22nd March, 2021 which the 1st Applicant paid vide the Cheque No. 000435 for Kshs. 161,155/- drawn in its favour to avoid forceful execution and the same can be treated as security in this matter pending reconsideration and or review of the said ruling. He therefore urged the court to extend the period within which to file the instant reference.

3. As a result, the 1st Applicant moved this court vide a Chamber Summons application dated 28th June, 2021 seeking for ORDERS:

1)The 1st Applicant be granted extension of time to file this reference to the taxation herein dated 23rd June, 2021 and the application be deemed to have been filed in time.

2)This Honourable Court do set aside the Taxing Master’s ruling and or decision delivered on 26th February, 2021 awarding the 2nd Respondent taxed costs amounting to Kshs. 161,155/-.

3)As consequent, Certificate of Taxation be vacated and or set aside.

4)The 2nd Respondent’s Bill of costs dated 12th June, 2020 be remitted back to the Taxing Master for review and reconsideration with appropriate directions on and for taxation.

5)That if the said bill of costs dated 12th June, 220 is taxed differently, the 2nd Respondent be ordered to refund the amount that will be found to be above what she has since paid.

6)That there be no orders as to costs of this application.

4. The application is founded on the grounds set out on the face therein and the Supporting Affidavit of Sigei K. Hillarysworn on even date.

Response

5. The 2nd Respondent opposed the motion through the Replying Affidavit of Nelson Mogaka sworn on 4th October, 2021. The deponent is the 2nd Respondent’s Senior Internal Counsel. He deponed that an application for enlargement of time must be made by way of notice of motion and not chamber summons citing relevant provisions of the law and rules of procedure. Secondly, that the 1st Applicant did not give a notice of objection to the decision of the Deputy Registrar neither has he given reasons for the unexplained delay of three and a half months before filing a reference. Instead, counsel fixed the matter for mention before this Honourable Court and cannot turn around and seek leave unless for very candid reasons. Be that as it may, he averred that the taxed costs were unconditionally paid. He further described the 1st Applicant’s application as omnibus as prayers 2, 3, 4 and 5 can only be sought in a reference and not together with an application for enlargement of time. In his view, the 1st Applicant has no arguable reference and ought to be dismissed.

Parties Submissions

6. The Applicant filed written submissions dated 12th October, 2021 in support of the application. Counsel submitted that pursuant to paragraph 11 of the Advocates Remuneration Order, the 1st Applicant did not require enlargement of time as it is not in dispute that vide a letter dated 26th February, 2021, he addressed the Deputy Registrar on his dissatisfaction of the ruling. Counsel submitted that the issue of enlargement of time is spent as this Honourable Court on 9th June, 2021 granted the 1st Applicant leave to file the instant application on or before 30th June, 2021. In any event, counsel submitted that applications seeking for such orders to enlarge time pursuant to Paragraph 11(4) of the Advocates Remuneration Order are made by way of chamber summons and even if it were not, the same does not go to the root or basis of the claim and is merely a matter of form not substance and does not render the application totally defective as was held in the case of Susan K. Baur v Shashikant Shamj Shah & Another (2011) eKLR.

7. On the principles of taxation, counsel cited the case of Lubellah & Associates Advocates v NK Brothers Limited (2014) eKLR and Republic v Minister of Agriculture & 2 Others Ex Parte Samuel Muchiri W’ Njuguna & Others (2006) eKLR. Counsel further urged the court to strike a balance between the rights of the 1st Applicant and the 2nd Respondent as no prejudice will be suffered if the bill is taxed afresh. To that end, counsel cited the case of KCB Limited v Sheikh Osman Mohammed CA No. 179 of 2010. On costs, counsel submitted that each party should bear their own costs as the error was not caused by either party but was inadvertently caused by the court.

8. The 2nd Respondent on the other hand filed written submissions dated 21st October, 2021 in opposition to the application. Counsel submitted that no leave was granted and the court record will confirm from the proceedings of 9th June, 2021 that the matter was mentioned and the court only directed the 1st Applicant to file a formal application. Counsel further submitted that extension of time can only be granted if the applicant accounts for the delay, length of the delay and chances of success. The 1st Applicant has not attempted to give reasons for not filing on time. Instead, counsel went on a frolic of his own seeking clarification from the Deputy Registrar who was functus officio having already delivered a ruling on the matter and fixed the matter for mention before this court. As such, counsel argued that the 1st Applicant is not deserving of the discretion of this court.

9. In any event, counsel submitted that the Deputy Registrar applied the law correctly in taxing the bill. Accordingly, counsel submitted that without leave and or extension of time there is no reference and consequently the other prayers sought cannot be sustained and are for dismissal. It is on this basis that counsel urged the court to find the application lacking merit and dismiss it with costs.

Analysis and Determination

10. I have considered the arguments advanced by both parties herein. The issue for determination is whether the time for filing of this reference should be enlarged and the reference be deemed to have been properly filed, and secondly, whether the bill of costs dated 12th June, 2020 herein should be remitted for taxation afresh.

11. I will address the question on enlargement of time first, as should the answer thereto be in the negative, then there would be no room to delve into the second issue. Paragraph 11 of the Advocates’ Remuneration Order provides as follows: -

“11. Objection to decision on taxation and appeal to Court of Appeal.

(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by Chamber Summons, which shall be served on all the parties concerned, setting out the grounds of his objection.

(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2), [and] may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(5) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made 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.”

12. The provisions of this paragraph were further expounded by the Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 Others (2017) eKLRwhere the court held that:-

“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; and

7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

13. The 1st Applicant has not advanced any reasons for the delay in lodging this reference three and a half months after the delivery of the ruling save that the bill was taxed on mistaken considerations. However, there is a letter dated 26th February, 2021 and marked as “SKH-3” seeking for a mention date before the Honourable Judge for directions noting that the Deputy Registrar had failed to consider their reply in her ruling of 26th February, 2021. This fact, the 2nd Respondent argued was ignorance on the part of counsel for the 1st Applicant since the proper procedure for challenging a decision on taxation is clearly provided for under Paragraph 11 of the Advocates Remuneration Order.

14. When the parties appeared before this court on 9th June, 2021, the court directed the 1st Applicant to move the court appropriately and directed that the matter be mentioned on 30th June, 2021. Whereas more diligence would have been expected of the counsel for the 1st Applicant to put in a notice of objection and thereafter file a reference, the circumstances of this case are peculiar in that counsel raised a genuine concern that the taxing master taxed the bill without considering the applicant’s response. Counsel engaged the Taxing officer through a letter and the Taxing master rightfully guided that the matter needed to be placed before a judge as she was functus officio.Apparently, counsel completely misapprehended the directions, as instead of moving the court formally, he sought a mention before a judge. Eventually he was directed to file a formal application. This mistake led to the attendant delay in the filing of this application.

15. No doubt there is delay in the filing. I attribute the delay to the mistake alluded to above. But it is manifestly clear that the applicant was not completely indolent save for channeling his energies in the wrong trajectory.

16. The applicant, in my view, should not suffer the penalty of having his case not heard on merit just because a mistake was made. (See Philip Chemowolo & Another v Augustine Kubende (1982-88) 1 KAR 103). Furthermore, this court is enjoined at all times to do justice to the parties and in the circumstances of this case, I am persuaded that the court should exercise the discretionary power to enlarge time in favour of the 1st Applicant especially noting that no prejudice will be occasioned to the 2nd Respondent.

17. On the second issue, the 1st Applicant is disputing the entire decision of the Taxing Master delivered on 26th February, 2021 on the ground that the same failed to consider his response to the bill of costs. In her ruling, the Taxing Officer observed at paragraph 3 that “The applicants were duly served with the bill of costs but did not file any pleadings in response/opposition thereto. As at the time of reserving the matter for ruling there were no submissions in the file…”After the bill of costs dated 12th June, 2020 was taxed, counsel for 1st Applicant immediately wrote an email on 26th February, 2021 to the court clarifying the position and annexed the replying affidavit dated 16th August, 2020 as well as the payment receipt. The said email is marked as “SKH-2” and is annexed to the 1st Applicant’s Supporting Affidavit.

18. It is now trite law that the High Court will only interfere with the decision of a Taxing Master in cases where there has been shown to be an error in principle. In Republic v Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna [2006] eKLR, Hon. Justice J. B. Ojwang (Retired) stated as follows:-

“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.” [Emphasis mine]

19. Differently put, before the court can interfere with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong. This means that the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the taxing master, but only when it is satisfied that the taxing master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling.

20. In the instant application, the Taxing Officer failed to consider the 1st Applicant’s replying affidavit dated 16th August, 2020 in her decision of 26th February, 2021 warranting this court’s interference with the Taxing Master’s findings. I therefore find the application dated 28th June, 2021 merited and is allowed as prayed. In the circumstances, I direct that the bill of costs dated 12th June, 2020 be taxed afresh before a Taxing Master other than Hon. C.A. Muchoki. There shall be no orders as to costs.

Dated, Signed and Delivered at Nairobi this 10th Day February, 2022

............................

A. K. NDUNG'U

JUDGE