[2023] KEHC 26564 (KLR)

Republic v Milimani Chief Magistrates Court; Director of Public Prosecutions & 2 others (Interested Parties); Galot (Exparte) (Application 622 of 2017) [2023] KEHC 26564 (KLR) (Judicial Review) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26564 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 622 of 2017

J Ngaah, J

December 15, 2023

Between

Republic

Applicant

and

Milimani Chief Magistrates Court

Respondent

and

Director of Public Prosecutions

Interested Party

Mohan Galot

Interested Party

Rajesh Galot

Interested Party

and

Pravin Galot

Exparte

Ruling

1. This is a reference from the decision of the taxing officer taxing the ex parte applicant’s party and party bill of costs dated 21 July 2022. The reference is expressed to be brought under ‘Rule 11’ of the Advocates Remuneration Order. The only primary prayer in the reference has been phrased thus:“1. That the Honourable court be pleased to review and overturn the decision of the taxing officer dated 30:01:2023 to tax the bill of costs dated 21st of July 21:07:2022 with regards to items 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 29, 30, 30, 31, 32, 84, 35, 36,”.

2. The reference is supported by the affidavit of Mohan Galot who is named as the 2nd interested party in these proceedings.

3. According to the applicant, the ex parte applicant filed his bill of costs which was eventually taxed at Kshs. 152, 915/=. The taxing officer’s decision was rendered on 30 January 2023.

4. The applicant is aggrieved by the decision to the extent that the taxing officer, inter alia, allowed certain items in the bill of costs as drawn without any further interrogation as to whether they were consistent with the applicable scale. In the rest of the items, the taxing officer is alleged to have taxed off less amount than what is allowed as per the scale.

5. The reference has been opposed and Pravin Galot filed a replying affidavit to this end. According to him, the 2nd interested party only objected to particular items at the taxation of the ex parte applicant’s bill of costs. The items he objected to have been specified in the submissions filed before the taxing officer. And in her ruling, the taxing officer specifically pointed out those items which the 2nd interested party did not object to. The items which he disputes in this reference were not among the ones that the disputed during the taxation proceedings. It follows that the 2nd interested party cannot purport to dispute those items at the reference stage.

6. The ex parte applicant has also stated that the 2nd interested party has never filed any objection after the taxing officer delivered her ruling on 30 January 2023. Accordingly, the bill of costs as taxed is reasonable and there is no reason why this Honourable Court should interfere with it.

7. I have considered the submissions by the parties.Paragraph 11(1) of the Advocate Remuneration Order provides room to a party who is dissatisfied with the decision of a taxing officer to object to that decision. The objection must specify the particular items to which an aggrieved party objects and where such an objection has to be taken, it must be done within 14 days of the date of the taxing officer’s decision. This paragraph reads as follows:1. should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of the taxation to which he objects.

8. Paragraph 11(2), on the other hand, enjoins the taxing officer to respond to the objection and, in his response, give reasons why and how he came to tax the disputed items the way he did. Once he receives the reasons, the objector will have fourteen days within which to file a reference to a judge in chambers. This subparagraph reads as follows: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 14 days from the receipt of the reasons apply to a judge by a chamber summons which shall be served on all the parties concerned setting out the grounds of his objection.

9. In consideration of the question whether an objection has, in every case, to precede a reference to challenge a taxation of a bill of costs decision, it is necessary and, indeed, they are better understood if subparagraphs (1) and (2) of paragraph 11 are read together.

10. What emerges from these subparagraphs is that there is nothing untoward when taxing officer taxes a bill without giving any reasons on why and how he taxed the entire bill or any items thereof in the manner he did. He may, for instance, say“the amount taxed off on item 1 is such an amount”without saying anything further. It is in such a case that a party who is aggrieved by the taxation will file an objection against the taxation and thereby enjoin the taxing master to go further and give his reasons for taxation.

11. It is also apparent from these two subparagraphs that the grounds upon which a reference can be mounted would, ordinarily, arise from the reasons proffered by the taxing master for his decision. Dissatisfaction with the taxation per se is not necessarily a ground to file a reference. It is after reasons for taxation have been given that an aggrieved party may found a cause for the reference.

12. What this implies is that it is possible that a party may not be satisfied with the taxation of any particular item or items in the bill of costs. But his doubts on the validity of the taxation may be removed after the taxing master has explained himself and given reasons for taxing the disputed items. In that event, it will not be necessary to proceed any further and file a reference or chamber summons challenging the decision of the taxing master. But the party will only take this step if he is not satisfied with the explanation or the reasons given by the taxing master.

13. It follows that where reasons for taxation of the bill or any particular items are given in the decision of the taxing master, the objection serves no other purpose than, perhaps, informing the taxing master that a party to proceedings before him is dissatisfied with his taxation. But such information may not serve any useful purpose since the taxing master is not required to take any further action on an objection that may be served upon him after he has already given reasons for his decision. Lodging of the notice of objection, in these circumstances, would be superfluous, to say the least.

14. The point is, to interpret paragraph 11 (2) as requiring the taxing master to give reasons that are already contained in his decision on taxation is, in my humble view, an absurdity.

15. Nonetheless, if for whatever it is worth, the applicant feels bound to serve the objection in compliance with paragraph 11(2), nothing stops him from doing so. However, it would be irrational on his part for him to sit pretty, after service of the objection, waiting for the taxing master to respond to the objection and give reasons that have otherwise been given in the taxing master’s decision. The clock for filing the reference starts ticking the moment the applicant receives the reasons.

16. I am unable to agree with the ex parte applicant that a reference would be rendered incompetent merely because it is not preceded by an objection even in a case where the taxing master has given reasons in the initial decision on the taxation in issue.

17. As I have noted, the reasons are necessary, in part, to challenge the taxation and where they have been given, nothing stands in the way of an aggrieved party to mount a challenge against the decision of the taxing master. In which event, I have to repeat, time starts running the moment the reasons are received irrespective of whether they are given in the initial taxation decision or after an objection to the taxation has been lodged.

18. So, to the extent that the 2nd interested party submits that an objection is not necessary where reasons have been given, I am on the same page with him. For the avoidance of doubt he has submitted on this point as follows:“3. The Taxing officer in his decision stated quite clearly that the ruling contained the reasons for his decision.4. This is in line with the decision in Vincent Kibiwott Rono v Abraham Kiprotich Chebet & another [2022] eKLR where Hon. Justice Nyakundi found that the failure of the magistrate to separately give reasons was not fatal to the reference as the same would be more or less a duplication of the ruling, we so urge to find.5. Further, in National Oil Corporation Ltd v Real Energy Ltd & Another [2016] eKLR Hon. Justice G. V. Odunga also held that where reasons are contained in the decision a party ought not to seek the same simply because it is fashionable to do so and we so urge you to find that.”

19. The ruling of the taxing master was rendered on 30 January 2023 and, apparently, it is on the same date that the 2nd interested party received it. At least there is nothing in the 2nd interested party’s pleadings or affidavit to suggest that he received this ruling on a later date. Since it is not in dispute that the ruling contained the reasons for taxation and, as the 2nd interested party has agreed that there was no reason to file an objection, time for filing the reference started running on 30 January 2023.

20. Under paragraph 11 (2) of the Advocates Remuneration order, the reference ought to have been filed within 14 days from the receipt of the ruling and, therefore, the latest date for filing the reference was 14 February 2023.

21. But the record shows that it was not until the 1 March 2023 when the reference was filed. This was more than two weeks after the lapse of the prescribed timeline.

22. Where, for any reason, an applicant has to file a reference outside the prescribed time, he can only do so upon invoking subparagraph (4) of paragraph 11 which gives the court power to enlarge time for doing any act under subparagraph (1) and (2).That subparagraph reads as follows:(4)the High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) of 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 sought time may have already expired.

23. If the 2nd interested party had any valid reason why he could not file the reference within the prescribed timelines, he ought to have invoked this provision of the law and sought extension of time to file the reference. It is only after extension of time that the reference could have been filed or the one filed could be deemed to have been duly filed. In the absence of leave to extend time, the reference before court is misconceived and an abuse of the process of the court.

24. And since there is no proper reference before court I need not consider it on merits and delve into other matters raised by the parties. The applicant’s reference is, therefore, struck out with costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 15 DECEMBER 2023NGAAH JAIRUSJUDGE