[2022] KEHC 1034 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

MISC. CIVIL APPLICATION NO. E365 OF 2020

S.T. MUGACHA T/A GALAXY AUCTIONEERS..............................................APPLICANT

-VERSUS-

GLOBAL TRUCKS LIMITED........................................................................RESPONDENT

RULING

1. The chamber summons dated 18th October, 2021 by Global Trucks Limited (hereafter the Applicant) seeks leave to the Applicant to file an appeal out of time against the ruling of the taxing master dated the 19th August, 2021; an order to stay execution in Claim No. 1075 of 2021 filed in the Small Claims Court seeking to have a decree issued in enforcement of the certificate of costs by the taxing master; an order to set aside the entire decision of the taxing master and the certificate of costs issued on the 19th August, 2021 and; in the alternative that this honorable court does remit the entire bill of costs to another taxing master.

2. The chamber summons is expressed to be brought under Rule 55(4) and (5) of the Auctioneers Rules 1997. On grounds on the face of the motion and amplified in the supporting affidavit of Muguro Irungu who describes himself as counsel having conduct of the matter on behalf of the Applicant. To the effect that the Applicant was served with a mention notice with respect to a matter before the Small Claims Court, namely, Claim No. 1075 of 2021 seeking judgment against the Applicant for a sum of Kshs. 898,859. 50/- arising from a certificate of costs dated 19th August, 2021; and that neither counsel on record nor the Applicant were ever served with pleadings and or notice of taxation but only learnt of the matter upon being served with the said mention notice.

3. Counsel goes on to depose that the email address to which S.T Mugucha t/a Galaxy Trucks Limited (hereafter the Respondent) purportedly served and or forwarded the taxation notice muguru@kmklawllp.co.ke is not the firms email address as the correct email address is muguro@kmklawllp.co.ke. He further swears that the Respondent purportedly served and or emailed the taxation ruling notice to mugoro@kmklawllp.co.ke which is also not the correct firm email address. That the from the record the Applicant was not accorded a fair hearing regarding the bill of costs thus it is in the interest of justice the said bill be heard by a different taxing master. Counsel also contends that the taxed costs were excessive, and the taxing officer erred., and that the Applicant is apprehensive that the Respondent may commence execution thereby rendering the chamber summons nugatory.

4. The Respondent opposed the motion is by way of a replying affidavit deposed by Joseph Makumi who equally describes himself as counsel having conduct of the matter on behalf of the Respondent thus competent and duly authorized to swear the affidavit. As a preliminary issue counsel contends that motion offends the mandatory provisions of Rule 55(5) of the Auctioneers Rules which requires the Applicant to move the court within 7 days if dissatisfied with the decision of a taxing master; contends that the Applicant was personally served with the auctioneer’s bill of costs and taxation notice at their offices in Aarpee House, Ground Floor along Lusaka Road but declined to acknowledge receipt directing that service be effected upon its advocates via the email address provided as muguru@kmklawllp.co.ke and mugoro@kmklawllp.co.ke. It is deposed further that the said email addresses belong to counsel on record for the Applicant; that the email informing counsel of the taxation ruling date was sent to the correct email address as such counsel opted not to move the court before the ruling was rendered and or within 7 days after delivery of the ruling as provided for under Rule 55(5) of the Auctioneers Rules.

5. It is deposed further that the parties herein engaged in protracted negotiations since March, 2021 with a view to settlement of the taxed costs and that it was only negotiations failed that the Respondent filed Small Claims Court Claim No. 1075 of 2021. Counsel asserts that the Applicants have not demonstrated irrelevant considerations by the taxing master or how she erred in taxing the bill to justify an order re-taxation and that stay of execution cannot issue as Small Claims Court Claim No. 1075 of 2021 is still pending, and that if this court is inclined to re-open the matter, it should impose conditions for provision of security by the Applicant.

6. Directions were issued on disposal of the chamber summons by way of written submissions. Both parties hereto failed and or neglected to file their written submissions despite being given ample opportunity to do so. However, the Court has considered the rival affidavit material in respect of the summons. The same is premised on Rule 55(4) & (5) of the Auctioneers Rules 1997. Rule 55 of the said Rules provides:

“(1) Except

as may be provided by any other written law or by contract the fees set out in the Fourth Schedule payable to the auctioneer for the attachment, repossession and sale of movable and immovable property under court warrants or letters of instructions shall be charged in accordance with these Rules.

(2) …

(3) …

(4) An appeal from a decision of a registrar or a magistrate or the Board under sub rules (2) and (3) shall be to a judge in chambers.

(5) The memorandum of appeal, by way of chamber summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the registrar or magistrate.”

7. The Court has considered the contents of the chamber summons. Although the application is styled as a reference, the supporting affidavit is principally confined to issues of service of the taxation notice and the Applicant did not include any grounds of appeal as required by Rule 55(5) of the Auctioneers Rules. Or in any way refer to the matter of leave to appeal out of time. The prayers 3,4 and 5 cannot be entertained in the absence of a valid reference. The prayer for leave to appeal out of time ought not to be lumped together with the actual prayers to be sought in a reference as prayers 5 and 6 seem to suggest, if indeed that was the intention behind these prayers.

8. On the other hand, it may well be that these same prayers envisage the setting aside of the ex parte taxation proceedings and not an appeal as such, from the ruling of the taxing master. The omnibus nature of the application is to my mind confusing and renders the entire chamber summons defective. It appears that the Applicant was not decided on whether the chamber summons was a reference or was intended to seek leave to appeal out of time or to set aside the ex parte taxation proceedings, the latter which ought to be canvassed before the taxing master. In the absence of submissions by either party, the Court is unable to tell what precisely the Applicant was seeking by its application. Accordingly, the chamber summons dated 18th October 2021 is hereby struck out with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 31ST Day OF MARCH, 2022

C.MEOLI

JUDGE

In the presence of:

For the Applicant: Mr Muguro

For the Respondent: Ms. Karwitha

C/A: Carol