[2023] KEHC 26864 (KLR)

Riaroh & another v Owino & another (Miscellaneous Civil Application E004 of 2023) [2023] KEHC 26864 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26864 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Application E004 of 2023

RE Aburili, J

December 11, 2023

Between

Christine Marion Adhiambo Riaroh

1st Applicant

Masterwork Company Limited

2nd Applicant

and

Griffin Odhiambo Owino

1st Respondent

Guangxi Hydroelectric Construction Bureau Kenya Limited

2nd Respondent

Ruling

Introduction 1. This is an application for the discretion of the Court to be exercised by way of notice of motion dated August 17, 2023 seeking the following orders; -i.Spentii.That the applicants be granted extension of time to file a reference out of time against the assessment and award of the taxing officer Hon. Gloria Baraza made on the 29. 6.2023 in Kisumu Commercial Case E10 of 2022 following the lapse or expiry of time to lodge a reference against the said award.iii.That the honourable court be pleased to issue an order of stay of the ruling of the honourable court delivered on 29. 6.2023 pending the hearing and determination of the reference.iv.That the honourable court be pleased to order the defendant’s Bill of Costs dated 12. 5.2023 retaxed after considering the several contested items.v.That the costs of this application be provided for.

2. The Chamber summons is supported by the Affidavit of Roselyne Obware and the grounds on the face of the summons.

3. It was the applicants case that on June 29, 2023, the taxing officer delivered her ruling in respect of the Bill of Costs at Kshs. 3,616,427 and subsequently a Certificate of Costs was issued on th 12th July 2023, during which time her advocate on record, Roselyne Obware, was indisposed as she had been on official sick leave from the July 27, 2023 to July 27, 2023 and as such she was not able to file the reference within the requisite 14 days.

4. Mrs. Obware deposed that when she returned to duty on the 31st July 2023, she discovered that the ruling had already been delivered and that no one had been assigned to handle th file on her behalf.

5. It was further deposed on behalf of the applicant that the delay in filing the reference was not inordinate and had been genuinely explained and thus the mistake of the advocate ought not to be visited on the innocent litigant.

6. Mrs. Obware submitted that item 1 in th Bill of Costs which was taxed and allowed at Kshs. 3,585,463. 13 was grossly exaggerated, extortionist, punitive, manifestly excessive and contrary to the law and principle and should thus be reduced.

7. It was further deposed that it was in the interest of justice that execution be stayed to avoid a situation where the intended reference was rendered nugatory.

8. In response, the respondents filed grounds of opposition dated August 4, 2023 in which they stated that the application was incompetent as it did not disclose a reasonable cause of action against their taxed Party & Party Bill of Costs.

9. The respondents further contended that that the application was bad in law as it did not comply with the mandatory terms of Paragraph 11 (4) of the Advocates Remuneration Order and further that the advocate had not demonstrated sufficient grounds to impugn the exercise of judicial discretion by the taxing master.

10. It was the respondent’s case that the application was an afterthought designed to disgorge the execution proceedings and further meant to deny them their duly awarded costs.

Analysis and Determination 11. Having considered the application, the affidavit in support, the grounds of opposition and the oral submissions by both counsel, the issues for the Court’s determination are:1. Whether or not extension of time under paragraph 11 (1) and (2) and 4 of the Advocates Remuneration Order should be granted.2. Whether or not execution should be stayed.

12. Paragraph 11 (1) (2) of the Advocates Remuneration Order does not speak to the relevant factors that the Court should consider when exercising its discretion on whether or not an extension of time should be granted. Guidance must therefore be solved from case la. In Paul Wanjohi MathengevDuncan Gichane Mathenge[2013] eKLR the Court of Appeal while referring to other authorities observed that:“The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi V Charles Gichina Mwangi – Civil Application No. Nai 26 of 2004, this Court held; -“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi V Kenya Airways Ltd [2003] KLR 486 in which this Court stated;-Over the years, the Court has, of course set out guidelines on what a single judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso V Rose Hellen Wangari Mwangi – Civil Application No Nai 255 of 1997(unreported), the Court expressed itself thus; -“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of the delay; secondly, the reasons for delay; thirdly(possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

13. As stated in the above cases the length of the delay and reasons for non-compliance with the set time lines are important factors to influence the exercise of discretion of the Court. In calculating the length of delay in making the application for an extension of time, the period will start running from 29th day of June, 2023 when the bill of costs was taxed by the taxing master to the 17th day of August, 2023 which date the aggrieved applicants lodged the application for extension of time.

14. The delay in filing the application was on an overreach of 34 days. In seeking to balance the interest of the respective parties, the failure to comply was not inordinate. In addition, the applicant in their affidavit explained the reasons which let time to lapse as an indisposition of the advocate handling the matter as a result of illness.

15. Mrs. Obware counsel for the applicants submitted that this mistake should not be visited on the innocent applicants. This plea that the mistakes of counsel ought not be visited upon the client is a common one and any advocate who fails to perform a duty due to his client will invariably seek relief on the basis that the mistakes or errors of the Advocate ought not to be visited upon the client. In espousing this position counsel for the Respondent relied on the case of Belinda Muras & 6others v Amos Wainaina [1978] KLR in which Hon Madan JIA (as) he then was defined what constitutes a mistake as follows:“A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but ought certainly to do whatever is necessary to rectify if the interest of justice so dictate.” [own emphasis]

16. Similarly in Phillip Chemwolo & Another v Augustine Kubede [1982-88] KLR 103 at 1040 Apaloo J/A as he then was stated thus:-“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit”. [own emphasis]

17. However, in Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR, the Court of Appeal observed as follows:“From past decisions of this court, it is without doubt that courts will readily excuse a mistake of counsel if it affords a justiciable, expeditious and holistic disposal of a matter. However, it is to be noted that the exercise of such discretion is by no means automatic. While acknowledging that mistake of counsel should not be visited on a client, it should be remembered that counsel’s duty is not limited to his client; he has a corresponding duty to the court in which he practices and even to the other side.”

18. In this case, Counsel for the applicants has explained, in my view, the reason for the delay and substantiated the same with evidence in form of the letter detailing her illness. This court takes notice that illness is an unplanned event and thus it is my view that the delay in this case was not inordinate taking into consideration the explanation given for the same.

19. Accordingly, 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.

20. As to whether or not execution should be stayed, the Statutory anchorage of the discretion to consider stay of execution rests on order 42 rule 6 (1) of the Civil Procedure Rules. It is on the basis that the Reference is a path way for an aggrieved party from the Certificate of Cost of the taxing master it may be argued correctly that the principles shall apply Mutatis Mutandis.

21. The court has considered numerous cases laid down for the exercise of judicial discretion. The guiding principles for determining whether or not to stay execution are; -i.Where special circumstances of the case so requiresii.There is proof of substantial loss that may otherwise resultiii.There is substantial question of law to be adjudicated upon by the appellant courtiv.Where if the stay is not granted, the appeal is successful, would be rendered nugatory. See for example;- Housing Finance Company of Kenya V Sharok Kher Mohamed Ali Hirji & another[2015]Eklr, Reliance Bank Ltd(In liquidation)vNoriake Investments Ltd, Rep V kenya Anti-Corruption Commission & 2 Others[2009]KLR 31,Carter & Sons LtdvDeposit Protection Fund Board & 2 others, Edward Kamau & another V Hannah Mukui Gichuki & another[2015]eKLR.

22. The Court in RWW v EKW [2019] eKLR held that; -“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgement. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the Appellant with those of the respondent.”

23. That being the case, the question is whether the subject matter of the reference if successful will be rendered nugatory. It has also been stated that the applicant is likely to suffer substantial loss in the event the respondent is allowed to proceed with execution considering the large sum in question, which the applicants contest.

24. For the reasons in the affidavit the court accepts the submissions for counsel for the applicants which discloses material averments necessary for the court to exercise discretion to grant a stay of execution of the Certificate of Cost pending the determination of the reference.

25. Accordingly, the application dated 17th August 2023 is found to have merits and is hereby allowed. The applicant is hereby granted seven days of today to file and serve a reference out of time. Pending the filing, hearing and determination of the said reference, there is hereby granted a stay of execution of the taxed costs.

26. In view of the reasons given for the delay, each party shall bear their own costs of this application as allowed.

27. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE