[2022] KEHC 13704 (KLR)

Synresins Limited v Pravin Vora t/a Vora Construction (Civil Suit 1095 of 2003) [2022] KEHC 13704 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13704 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 1095 of 2003

JK Sergon, J

October 7, 2022

Between

Synresins Limited

Applicant

and

Pravin Vora t/a Vora Construction

Respondent

Ruling

1. The advocate/applicant in this instance has taken out the chamber summons dated July 1, 2022. The Summons is supported by the grounds set out on its face and the facts deponed in the affidavit sworn by Muema Kitulu. The applicant is seeking for the orders hereunder:a.Spentb.That this honourable court be pleased to stay execution of the party & party costs awarded issued on June 16, 2022 pending the hearing and determination of the reference herein.c.That this honourable court be pleased to set aside, review or substitute the taxing masters decision issued on June 16, 2022 over the defendant/respondents party and party bill of costs dated November 12, 2020. d.That costs of this application be in the cause.

2. In opposition to the summons, the replying affidavit sworn by Isaiah Mudambi Mandala on July 25, 2022 was filed on behalf of the defendant/respondent.

3. In the replying affidavit, the respondent filed and served the applicant with a notice of preliminary objections stated at paragraph 2 (a) and (b) of the said affidavit basically objecting that the reference is filed out of time and no time extension has been sought by the plaintiff/applicant, hence the reference is null and void.

4. When the matter came up for directions on the July 28, 2022 and the plaintiff sought time to file a further affidavit and submissions whereof parties were given 14 days each to comply by filing and exchanging written submission

5. Contrary to the above directions, the applicant through its advocate filed a preliminary objection on some paragraphs in the respondent’s replying affidavit alleging that the same are argumentative and contravene order 19 rule 3Civil Procedure Rules. 5.

6. It is this court’s contention that the belated filing of the above without leave of court is un procedural and the same shall and has been struck off the record

7. A preliminary objection is one which raises a pure point of law which has been pleaded or which arises by clear implications out of pleadings and which when argued, may dispose of the suit. An example is the objection to the jurisdiction of the court or a plea of limitation. See the decision in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors (1969) EA 696

8. I have considered the grounds featuring on the face of the motion; the facts deponed in the supporting and replying affidavits respectively; the preliminary objection and affidavit in response thereto; and the respondent’s written submissions placed before me.

9. I will first make a determination on the preliminary objection which is premised on the fact that reference dated July 1, 2022 and filed on July 2, 2022 is filed out of the prescribed time frame contrary to rule 11(1) of the Advocates Remuneration Order since the ruling was given on June 16, 2022.

10. The respondent further avers that the applicant despite filing the reference outside the 14 days of the delivery of the decision has not sought for extension of time and annex the decision in his application, the reference is incompetent and the same should be struck out.

11. The applicant has not filed such notice within fourteen (14) days as per the law and there seems to be no reasons advanced on why the specific items in the party & party bill of costs dated November 12, 2020 were taxed as so. In considering the provisions on paragraph 11 (1) of the ARO, Odunga J inEvans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] eKLRhad this to say:-'In my own view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the Judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles.'

12. Further to the above, the taxing officer’s decision is dated June 16, 2022. This application was filed on July 2, 2022 which is outside the fourteen (14) days allowed for giving of notice to the taxing officer. The applicant has not sought leave of this court to file the notice out of time in accordance with paragraph 11 (1) of Advocates Remuneration Order. The application is therefore incompetent.

13. The court of appeal in Speaker of the National Assembly vs James Njenga Karume Court of Appeal at Nairobi Civil Application No 92 of 1992 (1992) eKLRheld that:-'In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an act of parliament, that procedure should be strictly followed.'

14. There is a clear procedure set out in paragraph 11 of ARO which the applicant must follow. No reason has been given why the applicant has not complied with that procedure.

15. In the issue of stay, that there cannot be stay of execution of costs as was held in the Court of Appeal Civil Application No 298 of 1996 Francis Kabaa vs Nancy Wambui & Jane Wanjiru.Court of appeal’s decision did not go into detail as to why a stay could not issue in respect of taxed costs. Taxation of costs, in my view, is part of the execution process. Section 89 of the Civil Procedure Act provides for the application of the Civil Procedure Rules in all cases of a civil nature such as the present application arising from taxation of costs. Section 89 of the act provides as follows:-“89. Miscellaneous proceedingsThe procedure provided in this Act in regard to suits shall be followed as far as it may be applicable in all proceedings in any court of civil jurisdiction.'Muriithi J held as follows in Labh Singh Harman Singh Ltd v Attorney General & 2 others [2016] eKLR 'It follows, in my view, that the provisions of the Civil Procedure Act with regard to stay of execution will apply to proceedings, which are of a civil nature, for the reference of an objection to the court from the taxation of a bill of cost by a taxing officer of the court under the Advocates’ Remuneration Order. This position accords with the interests of justice that a party against whom substantial sums of money have been adjudged in the nature of taxed costs should not be required to pay such monies before his challenge on the liability and quantum of the taxed costs is determined through a reference under the Advocates’ Remuneration Order, which is the procedure provided for such determination. Otherwise such references would be rendered nugatory, if eventually successful, and become a complete waste of judicial time.'

16. In the end, I am satisfied that the application dated July 1, 2022 offends the clear provisions of paragraph 11 (1) of the Advocates (Remuneration) Order. It is incurably defective and improper. The preliminary objection is upheld. The application dated July 1, 2022 is hereby ordered struck out with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ..............................J. K. SERGONJUDGEIn the presence of:....................for the Plaintiff....................for the Defendant