[2022] KEHC 13786 (KLR)

Shah And Parekh v Kenindia Assurance Company Limited (Miscellaneous Civil Application 405 of 2017) [2022] KEHC 13786 (KLR) (Civ) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13786 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 405 of 2017

CW Meoli, J

October 11, 2022

Between

Shah And Parekh

Applicant

and

Kenindia Assurance Company Limited

Respondent

(Ruling of Sergon J delivered on May 6, 2022)

Ruling

1. For determination is the motion dated October 7, 2021 by Shah and Parekh Advocates (hereafter the applicant) seeking among others that Kenindia Assurance Company Limited (hereafter the respondent) be deemed to have abandoned its right to file reference and the applicant be allowed to proceed to recover their costs as taxed on September 19, 2019. The motion is expressed to be brought under section 1A, 1B & 3A of the Civil Procedure Act and order 17 rules 4 and order 51 of the Civil Procedure Rules, inter alia, on grounds on the face of the motion amplified in the supporting affidavit sworn by Hasmukhrai Manilal Parekh, a partner in the applicant law firm having conduct of the matter therefore competent to depose.

2. To the effect that the respondent moved this court seeking extension of time to file a reference and notice of objection against the taxing masters’ decision andvide a ruling dated May 14, 2020 the court allowed the respondent’s motion and ordered it to file and serve its intended reference within twenty-one (21) days from the date of the ruling. Counsel asserts that as at filing of the instant motion the respondent has not filed the reference nor the notice of objection as directed by this court whereas no further extension of time within which to comply with the said orders has been sought by the respondent. He goes on to depose that his firm continues to be prejudiced having been kept out of their earned taxed costs for the past several years. That the applicant’s bill of costs was regularly taxed as such the instant motion ought to be allowed as prayed.

3. The respondent opposes the motion vide a replying affidavit deposed by Winnie Awour, head of the legal department at the respondent company. She takes issue with the motion on grounds that it has been filed in bad faith, lacks merit and is an abuse of the court process. She further deposes that in compliance with the ruling delivered on May 14, 2020 counselvide an email dated June 2, 2020 to milimanicivilhc@gmail.com filed a reference application of even date. That upon filing the reference counsel wrote a letter dated June 25, 2020 to the deputy registrar, civil division seeking a mention for purposes of taking direction in the reference which letter has not elicited any response. She goes on to assert that the applicant has since filed a response and grounds of opposition to the reference of which is indication that the applicant is alive to the fact that the respondent’s complied with the ruling delivered on May 14, 2020. That the filed reference is pending before court and ought to be determined on merit the deponent disputes that the respondent has neglected or ignored to file a notice of objection and reference within the timelines granted by the court in its ruling. In conclusion she asserts that the instant motion ought to be dismissed for want of merit.

4. In his further affidavit, Hasmukhrai Manilal Parekh contends that his firm was served with a chamber summons dated June 2, 2020 that was not filed in the instant cause but a separate cause as a reference or appeal in the “commercial & admiralty division”, namely, Misc application No 182 of 2020. That the said chamber summons filed by the respondent bears no case number and or court stamp which lends credence to the notion that the reference has never been filed in court. He goes on to depose that a hearing date for the chamber summons could not have issued at the respondent’s alleged request as the email was addressed to the civil division of the High Court and not the “commercial & admiralty division” where the respondent’s chamber summons was lodged. That the affidavit in response and grounds of opposition were filed under the mistaken belief that the respondents had filed a reference in this cause, not realizing that in fact the same had been filed in a different division of the High Court with separate and distinct case number hence any pleadings filed in respect of the reference by the respondent should be ignored relating as they do, to a non-existent reference.

5. The motion was canvassed by way of written submissions. Counsel for the applicant argued that from the material placed before this court it is quite obvious that instead of filing a reference in the instant matter as ordered by the court, the respondent has filed a separate and distinct motion in a different cause and division of the High Court hence no reference was filed with respect to the taxation ruling of the court delivered on May 14, 2020. While calling to aid the decision inBundotich v Managing Director Kenya Airports Authority & another [2007] 2 EA 90 (HCK) Pg 92 it was submitted that there has been no reference filed to this court and the applicant’s motion ought to be allowed. In conclusion counsel asserted that it is the duty of the court to dispense justice expeditiously taking into account that the applicant filed its bill of costs more than four (4) years ago.

6. On the part of the respondent, it was argued that due to inadvertence, the reference was erroneously drawn to read “commercial & admiralty division”. It was contended that the reference was amended to read High Court “civil division” and assigned case number Misc application No 182 of 2020. Counsel proceeded to assert that directions have since been taken in Misc application No 182 of 2020 before a court in the civil division and a ruling was slated for May 6, 2022. It is apposite to state here that the allegations that the “reference” was amended, directions given and is pending ruling were raised from the bar, there being no affidavit material tendered in that regard by the respondent. nonetheless, the respondent asserted that in view of the foregoing the respondents had complied with the ruling of the court on May 14, 2020 and the motion ought to be dismissed with costs.

7. The court has considered the rival affidavit material and submissions in respect of the motion. What this court has been called to determine is whether a reference has indeed been filed regarding the taxation ruling delivered on May 31, 2019 within the prescribed duration as ordered by this court. The applicant’s grouse is that the respondent has neither filed the reference nor the notice of objection within 21 days as ordered by this court in its ruling delivered on May 14, 2020, and that no extension of time within which to comply with the said orders has been sought by the respondent. In my opinion, the applicant essentially seeks that the court exercises its discretion and inherent powers in line with the overriding objective to expeditiously determine the instant matter in view of the orders issued on May 14, 2020 and subsequent events, to enable the respondent recover its taxed costs.

8. It is indeed a truism that the main concern of the court in exercising its discretion is to do justice to the parties. The applicant in its motion before this court has relied on section 1A, 1B & 3A of the Civil Procedure Act. The foregoing provisions state that:“1A. (1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the court to further the overriding objective of the act and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.”1B. (1)For the purpose of furthering the overriding objective specified in section 1A, the court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties; and(e)the use of suitable technology.”3A.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

9. InKaruturi Networks Ltd & Anor v Daly & Figgis Advocates, civil Appl Nai 293/09 the Court of Appeal had the following to say concerning the overriding objective in section 1A and 1B of the Civil Procedure Act:“The jurisdiction of this court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective….. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court…” (emphasis added)See also: Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates[2013] eKLR

10. In the of-cited case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 others [2014] eKLR the Supreme Court stated that article 159 (2) (d) of the Constitution and section 1A & 3A of the Civil Procedure Act command the courts to administer justice in a manner that is efficient, proportionate and cost effective while eschewing technicalities. And further observed that the said provisions were never intended to supplant the rules of procedure or to provide succor to parties who demonstrate scant regard for rules of procedure and timelines, which facilitate the process of judicial adjudication.

11. While the discretion of this court is unfettered when exercising its inherent powers, the applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion and inherent powers in its favor. The gravamen of the applicant’s motion is precise, that no reference has been filed in this matter within the prescribed timeline as ordered by this court in ruling delivered on May 14, 2020. That instead, the respondent opted to file a separate and distinct chamber summons in a different cause and division of the High Court in contravention of the ruling delivered by this court. It is emphasized that the bill of costs having been filed more than four (4) years ago. The respondent in answer asserts compliance with the ruling delivered on May 14, 2020 counsel vide an email dated June 2, 2020 to milimanicivilhc@gmail.com filed a reference application of even date, which reference is pending before court and ought to be determined on merit.

12. It has not been disputed that the respondent had twenty-one (21) days within which to file its reference application pursuant the ruling delivered by this court. However, what is in contention is whether “Misc application No 182 of 2020” filed by the respondent was a reference within the context of the ruling of this court. The chamber summons in question refers to a taxation ruling delivered on May 31, 2020 as the subject thereof and in the body of the chamber summons there is scant reference and or connection therein to the present cause. claims in the respondent’s submissions that the “erroneous” chamber summons intituled “commercial & admiralty division” was amended to read High Court “civil division” and subsequently assigned case number “Misc application No 182 of 2020” and was heard and pending ruling are factual matters which ought to be presented by way of affidavit, and not through submissions from the bar.

13. Be that as it may, the court exercised the liberty of perusing the court file in Nairobi Milimani civil Misc application No 182 of 2020. The record bears out some of the averments in the affidavit material placed before this court. But more fundamentally, the ruling of Sergon J delivered on May 6, 2022 addresses some key issues thrown up for determination herein. The learned judge stated in his ruling inter alia that:“15. Upon my perusal of the record, while I note that the chamber summons reference reads commercial and admiralty division,’ it bears the court stamp for the civil division, which would support the averments being made by the applicant that the title was the result of an inadvertent error and which explanation I find to be reasonable in the circumstances.16. On the second issue touching on the filing of an appeal as opposed to a reference, it is the contention of the respondent that instead of filing a reference before the High Court-civil division in Misc civil application No 405 of 2017 the applicant proceeded to lodge the present appeal before this court.17. The applicant on its part is of the view that the present matter constitutes a Reference properly filed before this court.18. Upon my study of the record, I observed that the present chamber summons is a reference and not necessarily an appeal in the manner indicated by the respondent.19. Be that as it may, upon my further perusal of the record, I note that upon hearing the applicant’s application dated July 2, 2019 filed in Misc civil application No 405 of 2017 the High Court in the abovementioned ruling delivered on May 14, 2020 extended the time required for the applicant to both file a notice of objection to the taxation and to file a reference.20. From my study of the material placed before me, it remains unclear why the applicant chose to file a reference in this matter as opposed to filing the same in Misc civil application No 405 of 2017. 21. Further to the foregoing, I also note that there is nothing to indicate that the applicant complied with the abovementioned court order by filing a notice of objection to the taxation, and yet in its instant reference, the applicant faulted the taxing master for not providing reasons for her decision on taxation. In any case, the record provided does not bear the ruling and reasons for taxation for this court’s reference.22. Going by the record, I observed that the respondent had annexed what seems to be a draft and undated notice of objection, which would support my findings above.23. In view of the foregoing circumstances, I am of the view that the applicant herein ought to have fully complied with the court orders issued on May 14, 2020. I am equally of the view that the applicant ought to have filed the reference under Misc civil application No 405 of 2017 for continuity purposes.24. In the circumstances, it is not appropriate to consider the merits of the instant reference and i am only left with the option to order the striking out of the reference with costs which I hereby do.” (emphasis added)

14. This court entirely agrees with Sergon J’s finding regarding the respondent’s failure to comply with the court order issued on May 14, 2020 to file its reference in the instant matter together with the notice of objection. The ruling of Sergon J has neither been appealed from nor varied or set aside. The time for compliance having expired and no prayer having been made to enlarge the same, it seems that the respondent’s options in this cause are closed. It was intended that the procedure provided in the Advocates Act for recovery of costs by advocates from their clients and references from taxation would be uncomplicated and expeditious. Thus, it is difficult to understand why the respondent opted to take the convoluted path of instituting a fresh and separate cause by way of reference from a taxation ruling herein, which action has only perpetuated delay. In the circumstances, without delving further into other issues canvassed herein, the court holds the view that in the absence of a subsisting reference, there can be no justification, and it would run counter to the overriding objective, to allow this matter to remain in limbo, thereby denying the applicant the right to enjoy costs that have already been taxed. In the result, the court allows the applicant’s motion with costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 11TH DAY OF OCTOBER, 2022. C.MEOLIJUDGEIn the presence of:For the Applicant: Mr. ShahFor the Respondent: N/AC/A: Carol