[2021] KEHC 9533 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CIVIL MISC. E003 OF 2020

SOLITON TELMEC LIMITED...................................APPLICANT

VERSUS

NATIONAL CONSTRUCTION AUTHORITY......RESPONDENT

RULING

1. The application before court is brought under Sections 1A, 1B, 3A and Section 27(1) of the Civil Procedure Act, Order 10 Rule 11 of the Civil Procedure Rules and Article 149 of the Constitution 2010.

2. The application seeks for 4 substantive prayers as follows;

· enlargement of time within which to file a reference;

· setting aside or varying the warrants of attachment and warrants of sale dated 30th October 2020 and the decree dated 10th September 2020;

· setting aside of the Respondent’s assessed costs and costs of this application.

· The respondent to bear auctioneers costs.

3. The application is predicated on grounds that the warrant of attachment and sale were as a result of an assessment of costs by an executive Officer; an executive Officer is not a court within the meaning of the definition of “court” and has no powers to assess costs; the applicant was not notified when the bill was assessed.

4. The Respondent opposed the application by filing a replying affidavit dated 18th November 2020, sworn by Win Museo Charles an advocate acting for the Respondent, wherein he stated that the Applicant was inactive for one year in the suit which culminated in the same being dismissed; the court thereafter directed assessment of costs be done by the executive officer as a result of the dismissal; a date for assessment of costs was fixed and notice of the same served upon the Applicant. The Applicant chose not to participate and the assessment was done in his absence. Further pursuant to the impugned assessment an application similar to the one before court was filed in the lower court which application was later withdrawn.

Counsel urged for the application to be dismissed with costs.

5. Several issues have been raised for determination;

i. Is the Executive Officer in the subordinate court empowered to assess costs?

ii. Whether the application before court is proper?

iii. If so, should the assessment be set aside?

iv. Who pays the costs?

6. Part III Taxation of Costs in contentious matters and specifically Section 49 of the Advocates Remuneration Order provides as follows;

“(1) This part shall apply to contentious matters and the taxation of costs as between advocate clients and between party and party in contentious and other proceedings.

(2) In this part, the expression “the court” means the High Court or any judge thereof or a resident magistrate court or any magistrate as a member of a Resident Magistrate Court.”

7. On the other hand, Section 27 of the Civil Procedure Act gives the High Court and subordinate court discretion to award costs and to determine the extent of costs. This section is in sync with the Advocates Remuneration Order that the mandate of determining costs lies with a Judge ort magistrate. It goes further to give discretion in so doing.

8. The question that arises is whether an executive Officer has the mandate to assess costs? This issue has been a subject of discussions in various cases. Section 49 of the Renumeration Order defines what in a court is. In this context a subordinate court is the Resident Magistrate’s Court and a member of the Resident Magistrate Court.

9. The section is clear as who has the duty, a court cannot include a member of staff certainly not an officer holding an administrative position distinct from a Registrar or a Deputy Registrar in the High Court who are Judicial Officers and who ordinarily carry out judicial functions.

10. In this regard I do concur with Mrima J in Richard Otieno Oloo vs Anastacia Anditi Oloo and Anor [2019] eKLR, Limo Jin Bernard Gichohi Njira vs Kanini Njiira Kathendu & Anor [2015] eKLR and Aburili J in Nyamongo & Nyamongo Advocates vs Pan African Insurance Company Ltd & Anor [2016] eKLR.

11. Is the application before court proper? The process to be applied where a party is aggrieved by an assessment and taxation is set in Order 11 of the Advocates Renumeration Order. The Applicant herein did not follow the requirement of Order 11 Rule 1; giving of 14 days’ notice to the taxing officer/assessing officer.

12. In this case as the executive officer’s order was annullity abi nitio, was he to be notified? Processes where judicial discretion is necessary must be undertaken by one with jurisdiction. What would an executive officer have done with the notice?

13. None of the parties cared to provide the court with the lower court proceedings. Only a page was placed with the application to indicate directions given to the executive Officer by the court. One party says there was participation, the other one states he was not aware when the assessment was done.

14. The assessment of costs was done in March 2020 although it is said that the Respondent was served with the date, no proof of service was placed before court.

15. And therefore, due to the various anomalies mentioned above even if the application before this court was filed outside the 14 days, or a step was skipped, the Court will not consider technicalities if any. Further the court does not find the time lapse to be inordinate, and circumstances of the matter militate towards setting aside the assessment by the executive Officer together with any other subsequent order or orders arising therefrom.

16. The file is returned back to the lower court with directions that the assessment be done before a magistrate and in the presence of both parties.

17. Each party to meet their own costs.

DELIVERED AND SIGNED AT GARISSA THIS 28th DAY OF JANUARY, 2021.

ALI ARONI

JUDGE