[2019] KEHC 11635 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISC. APPLICATION NO. 73 OF 2018

WAIGANJO WACHIRA & CO. ADVOCATES.....................APPLICANT/RESPONDENT

VERSUS

PACIS INSURANCE CO. LIMITED....................................RESPONDENT/APPLICANT

RULING

1. Before me is the Chamber Summons Reference dated 17th January, 2019 brought by the respondent/applicant (“the applicant”) under Paragraph 11(2) of the Advocates (Remuneration) Order and Article 159 of the Constitution. The same is supported by the grounds set out on the face thereof and the facts deponed to in the affidavit sworn by the applicant’s Senior Legal Officer, Njoki Kinyua. The orders being sought therein are as follows:

(i) THAT the decision made by the taxing master on 15th November, 2018 on the Bill of Costs dated 3rd January, 2018 be set aside and the said Bill of Costs be taxed afresh before a different taxing master.

(ii) THAT in the alternative, the decision of the taxing master dated 15th November, 2018 be set aside and the Bill of Costs dated 3rd January, 2018 be taxed at such amount as this Honourable Court may deem appropriate.

(iii) THAT costs of the application be provided for.

2. The deponent asserts that by way of a letter dated 3rd December, 2014 the applicant instructed the applicant/respondent(“the respondent”) to file a suit on its behalf for the recovery of Kshs.774,036/= but that the respondent did not act on such instructions.

3. The deponent further asserts that the applicant was on 15th March, 2018 served with the respondent’s Bill of Costs claiming the total sum of Kshs.123,946/= and that when the same came up before the taxing master on 26th September, 2018 the respondent was ordered to file and serve documents supporting its Bill, following which the applicant was to put in submissions.

4. It is Njoki Kinyua’saverment that the Bill of Costs was ultimately taxed at Kshs.94,179. 40/= and being dissatisfied with the said decision, the applicant filed a Notice of Objection which did not elicit any response from the taxing master.

5. The deponent adds that the applicant then applied for a copy of the aforesaid decision which, it turns out, set out the reasons for the decision. It is the applicant’s position that the taxing master ought to have considered that the respondent never filed a suit and therefore had no basis for claiming instruction fees; and that the said taxing master allowed items 2, 3, 4 and 7 of the Bill of Costs despite the said items not being provided for under Schedule VII of the Advocates (Remuneration) Order.

6. It is also stated that items 5 and 10 of the Bill of Costs were taxed at a higher amount than what was claimed therein and that the applicant’s submissions were not taken into account.

7. In reply, the respondent has filed Grounds of Objection dated 15th February, 2019 in effect arguing that the application is inter alia, an abuse of the court process, unnecessary and an afterthought.

8. Parties filed written submissions on the Chamber Summons. In its submissions filed on 19th March, 2019 the applicant reiterates that since the respondent had not filed the suit as instructed or given any indication that a suit had been filed, there was no basis for claiming instruction fees and resultantly, the taxing master misguided himself by taxing items 1) and 13) of the Bill of Costs.

9. In respect to items 2), 3), 4) and 7) of the Bill of Costs, it is the applicant’s contention that going by the fact that the suit would have been filed in the subordinate court, Schedule VII of the Remuneration Order makes no provision for the said items and hence they ought to have been taxed off.

10. In its opposing submissions similarly filed on 19th March, 2019, the respondent argues that the applicant ought to have sought leave of this court prior to filing the reference since the same was filed outside the specific timelines set out in Paragraph 11 of the Remuneration Order and thus, the reference ought to be dismissed on this ground. Its arguments were backed by judicial authorities.

11. The respondent further submits that contrary to the position portrayed by the applicant, an advocate is entitled to his or her instruction fees whether or not the relevant matter has been filed in court and hence, the taxing master acted properly in taxing the same.

12. On items 2); 3); 4) and 7), save to clarify that item 4) was indicated as having been taxed off by the taxing master, the respondent maintains that the assertion that the remaining items are not provided for under Schedule VII is unfounded. Furthermore, it is the respondent’s steadfast submission that as concern items 5) and 10), the taxing master enjoys the discretionary power to tax items as he deems fit and is in no way bound by the sums pleaded in the Bill of Costs.

13. I have taken into consideration the grounds listed in the Chamber Summons Reference; the supporting facts as well as the Grounds of Objection. I have equally considered the rival submissions together with the authorities cited. Nevertheless, before I proceed with the merits of the Reference, I find it prudent to first consider the issue raised by the applicant as to whether the Reference is properly before this court.

14. The procedure and timelines for filing of a Reference are expressly set out under Paragraph 11 of the Advocates (Remuneration) Order.For reference purposes, I shall cite the provisions hereunder:

“(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.”

15. It is not in dispute that the taxing master delivered his ruling on 15th November, 2018. The record shows that the applicant filed a Notice of Objection to the aforesaid ruling on 29th November, 2018. Going by the above-referenced provisions of Paragraph 11(1), this was done within 14 days following the ruling.

16. The Remuneration Order requires a party to file a Reference within 14 days of receiving the reasons for the decision. In this instance, the facts deponed to in the supporting affidavit are that the taxing master did not respond to the applicant’s Notice of Objection, resulting in the request for a copy of the ruling vide a letter received in court on 11th January, 2019 adding that the ruling containing the reasons was availed to it on 11th January, 2019.

17. From the foregoing, the applicant was expected to have lodged a reference within 14 days from the date of receiving a copy of the ruling, which was 11th January, 2019. I have observed that the Reference was filed on 31st January, 2019 which surpasses the 14-day window period. It is noteworthy that the said Reference was filed late despite bearing the date of 17th January, 2019.

18. Whereas the law bestows discretionary power upon the court to enlarge the time required for the filing of a reference, I note that the applicant neither filed the Reference timeously nor sought leave of the court to enlarge the time prior to filing the same.

19. I am therefore of the considered view that the Chamber Summons reference has been brought late in the day. In any event and as the respondent correctly put it, the law and procedure applicable in challenging a ruling on taxation is mandatory as opposed to amounting to a mere technicality. Such a view was taken by the court in Lawrence Mwangi & Co. Advocates v John Mathiaka Kimundu [2019] eKLR in this manner:

“Our courts have, in various pronouncements, explained that this procedure for challenging a taxed bill is mandatory and is not a mere technicality. See, for example, Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others [2016] eKLR and Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co Advocates v Export Hydro Pump and Services (Africa) Limited [2018] eKLR.”

20. Having determined that the application improperly before this court, I see no need to address its merits. Consequently, the Chamber Summons Reference is struck out with no order on costs.

Dated, signed and delivered at NAIROBI this 4th day of July, 2019.

L. NJUGUNA

JUDGE

In the presence of:

……………………………. for the Applicant/Respondent

……………………………. for the Respondent/Applicant