[2004] KEHC 340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Civil Case 177 of 1997

STONE KATHULI MUINDE ………………………………………... PLAINTIFF

VERSUS

KATELEMBO ATHIANI MUVUTI

FARMERS AND RANCHING

CO-OPERATIVE SOCIETY ………………………………………. DEFENDANT

R U L I N G

By a chamber summons dated 23. 6.2003 the plaintiff/applicant seeks an order of stay of execution pending the determination of this application. That the court declares that the taxation of the bill of costs dated 15. 3.2003 is null and void as the suit is not yet concluded or that in the alternative the decision of the taxing officer be set aside as the taxation is based on the whole suit but not the application; that the costs awarded to the respondent are manifestly excessive and contrary to the Advocates Remuneration Order; that the bill be remitted to the Deputy Registrar for taxation and lastly he claims costs of this suit. The application is based on grounds found in the body of the application and a supporting affidavit by Stone Muinde Kathuli the applicant herein. The application was brought pursuant Order 21 Rule 22; Order 50 Rule 13 (2); Order 20, 26 and 27 Civil Procedure Rules; Section 3A Civil Procedure Act and Para 11 Advocates Remuneration Order. The applicant was the plaintiff in HCC 177/1997. The suit was referred to arbitration and a decision was made and the applicant filed on application seeking to set it aside on 28. 2.2000 but it was heard and dismissed on 3. 2.2003 with costs to the respondent. On 17. 3.2003 the respondent filed a bill of costs dated 15. 3.2003 claiming Ksh. 82,795 and it was taxed at Ksh. 62,920/-. It is the applicants contention that the suit has not yet been determined as judgement has not been entered and that the taxing master did not tax the bill in terms of the Advocates Remuneration Order and the bill is therefore manifestly excessive and that the magistrate erred in taxing costs for the whole suit instead of the application and is therefore null and void. The applicant having been dissatisfied with the taxation had his Advocate write to the Deputy Registrar objecting to the taxation in a notice dated 16. 5.2003 and filed in court on 17. 5.2003. On the same day Belpoint Auctioneers proclaimed the applicants properties before the taxing master gave reasons for his decision.

Mr. Masika advocate for the respondent filed an affidavit in opposition of the application and depones that his firm has been acting for respondent since 26. 1.1997 till 19. 6.2002 when they withdrew for awhile and were reappointed on 2. 10. 2002. He argues that there was no need for a decree to be prepared but a certificate of costs. That after the application to set aside the award was dismissed, what was left was entry of judgement as there is no objection to its entry and therefore costs should be paid to the respondent as no application was made moving the court to accept the award as the judgement of the court.

The proceedings which are subject of this application are contained in this same file and this court only need to refer to the court record.

By consent of the parties the case filed before this court was referred to the Eastern Province Co-operative Officer for arbitration on 14. 7.1999. The arbitrators award was read to the parties on 28. 1.2000 but the plaintiff made an application dated 28. 2.2000 seeking to set it aside. On 5. 2.2003 this court dismissed the said application seeking to set aside the award. Since the award had been read to the parties the next step was to have it made the judgement of the court. Order 45 Rule 17 provides that the court shall on request, enter judgement according to the award. From the court record, soon after the dismissal of the plaintiffs application on 5. 2.2003 the respondent filed their bill of costs dated 15. 3.2003 on 17. 3.2003. When the bill of costs came up for hearing Mr. Makau for the applicant objected to the bill, one of the grounds being that it was premature as the suit was still pending. It is not Mr. Masika who conducted the proceedings on behalf of the respondent at that hearing and it is erroneous for Mr. Masika to argue that the Plaintiff never objected to the taxation of the bill. An objection was raised by Mr. Makau and I am in agreement with Mr. Makau for the plaintiff that the filing of the bill was premature as the award had not been made the judgement of the court. If the plaintiff had not moved the court to make the award the judgement of the court, there is no reason why the respondent did not do so. Besides, taxation was based on the whole suit, which should not have been the case. May be a bill could have been filed based on the application and even so the court would need to have been given reasons as to why the respondent could not wait for the suit to be determined before a bill could be drawn for taxation based on the application. Order 50 Rule 13(2) provides that unless the court otherwise orders, for special reasons to be recorded, costs awarded upon chamber summons, Notice of motion or other process shall be taxed only at the conclusion of the suit. The taxation of the bill was premature and irregular.

The ruling by the taxing officer was given on 14. 5.2003. The plaintiff’s counsel filed an objection to the decision of the taxation on 16. 5.2003. Para 11 (1) of Advocates Remuneration Order provides that any objection to the decision of the taxing officer should be made within 14 days of the decision. However in this case the respondent went ahead and proclaimed the applicants goods before 14 days within which the objection could be made was over. The result was that the taxing officer was not able to give the reasons for his decision on the items objected to. In this case the objection was on the item which plaintiffs counsel had objected to during the taxation. The proclamation was therefore premature and unlawful.

Mr. Masika submitted that the plaintiff should have moved to quash the decision of the taxing officer by way of certiorari. The Advocates Remuneration Order sets out procedure on how the taxing officers decision is to be challenged. It is for the plaintiff to choose what remedy best suits his circumstances. Unless there is any inhibiting factors the plaintiff rightly chose to follow procedure as per Advocates Remuneration Order.

I have also noted that indeed some of the items in the bill awarded to the respondent were done so irregularly for example costs for Respondent’s counsel withdrawing from acting for his client were passed over to the plaintiff. That is why it was necessary for the taxing officer to give his reasons for such an award.

For the above reasons, it is hereby ordered that there be stay of execution and the taxing officer’s decision be and is hereby set aside and the bill is ordered remitted back to the Deputy Registrar to tax afresh only after the arbitrators award is made judgement of this court and all procedures complied with as by law provided. Costs of this application to the applicant.

Dated at Machakos this 14th day of April 2004.

Read and delivered in the presence of

R. V. WENDOH

JUDGE