[2022] KEHC 13801 (KLR)

Waititu & another v Peter Okoth Oloo t/a Indomitable Auctioneers (Miscellaneous Civil Case E023 of 2022) [2022] KEHC 13801 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13801 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Civil Case E023 of 2022

AN Ongeri, J

October 7, 2022

Between

Zacharia Ngige Waititu

1st Applicant

Matunda Fruits Bus Service Ltd

2nd Applicant

and

Peter Okoth Oloo t/a Indomitable Auctioneers

Respondent

Ruling

1. The application coming for consideration in this ruling is the chambers summons dated 6/6/2022 seeking leave to appeal out of time against the ruling delivered by the taxing master on 17/5/2022 and also stay pending the appeal.

2. The application was supported by the 1st applicant in which he stated as follows:i.That a ruling was delivered on the 17th of May, 2020, whereby auctioneers costs were taxed at Kshs 70,815 with a period of 30days stay granted and they only managed to obtain a copy of the ruling on 5/5/2022 at the civil registry as the file had been misplaced;ii.That by the time a copy of the ruling was being obtained, the statutory period of 7days within which to lodge an appeal had already lapsed;iii.That aggrieved by the ruling on the auctioneers bill of costs dated the 8/6/2021 they instructed their advocates on record to lodge an appeal against the said ruling;iv.That unless a stay of execution is granted, the respondent may proceed to execute against the said ruling and therefore occasion great prejudice and loss;v.That in the ruling, the trial magistrate awarded costs of Kshs 30,000 being advocates fees an amount foreign to the auctioneer rules;vi.That the learned trial magistrate allowed attachment costs of Kshs 16, 793, whereas the respondent only proclaimed and never attached the appellants motor vehicle;vii.That the auctioneer is not entitled in law to charge fees on work not done but expected to be done at a future date, and as such being dissatisfied with the learned trial magistrate’s ruling , they now seek to canvass their grievances before this honorable court in the form of an appeal; andviii.That the delay in filing the appeal was not deliberate but was based on unforeseen circumstances and mistake of counsel which should not be visited upon innocent litigants who have a viable appeal.

3. The respondent opposed the application and filed a replying affidavit in which he deposed as follows:-i.That on the 17th of May, 2020 the court gave a ruling to his bill of costs which was taxed at Kshs 70, 815 and on the date of the delivery of the ruling, the applicants advocate sought for 30days stay of execution;ii.That the applicant only waited until the 30days lapsed to move the court with this application under the guise that the file was missing or misplaced;iii.That the Kshs 30,000 was paid to the respondent’s advocates as their interim fees to represent him in pursuing the application for taxation;iv.That the amount incurred as expenses in pursuing his bill of costs should be met by the applicants;v.That attachment commences once warrants of attachment is issued and therefore, he is entitled to Kshs 16, 793 which the applicant is contesting; andvi.That the application has been brought with undue delay hence should not be entertained.

4. The parties filed written submissions as follows:-The applicant submitted that the delay in filing their appeal was occasioned by the unavailability of a copy of the ruling at the civil registry, and the delay of 21 days was not inordinate and deliberate on their part.

5. It was the applicants’ submission that their memorandum of appeal is arguable and raises points of law and fact that warrant the honorable court’s intervention on appeal, and further that the applicants’ are not guilty oflaches, as they have approached the court without delay.

6. It was also the applicants’ submission that they should be granted stay of execution pending appeal, as they have demonstrated that the trial magistrate erred in the ruling by awarding excessive and non-existent items not envisaged in the auctioneer rules, and further, should stay not be granted, the applicants stand to suffer substantial loss should the appeal be allowed and the respondent executes before determination of the appeal.

7. The respondents on the other hand submitted that although the applicants stated that the reason for not filing their appeal within the required time was that they were unable to get a copy of the ruling on time, they have not demonstrated to the court that they strived to get a certified copy of the ruling but failed. It was submitted that the applicants’ had an obligation to write a formal letter to court requesting for a copy of the ruling.

8. It was further submitted by the respondent that the applicants’ have not demonstrated that they will suffer substantial loss if the order is not issued and also that the applicants’ have not proposed to give security in due performance of such order.

9. It was further submitted that the applicants’ have not met the threshold of granting stay orders as espoused in Giella versus Cassman Brown.

10. The issues for determination are as follows:-i.Whether the applicant is entitled to stay pending appeal.ii.Whether the applicant is entitled to leave to appeal out of time.

11. I find that the applicant ought to have written a letter to the taxing master seeking reasons for the taxation.

12. The procedure for filing a reference is as follows:- paragraph 11 (1) and (2) of the Advocates (Remuneration) Orderstates as follows:-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.

13. In Singh Gitau Advocates Versus City Finance Bank Limited [2021] eKLR, the court stated as follows:- “The procedure for the challenge of the results of taxation is provided under paragraph 11 of the Advocates (Remuneration) Orderwhich provides that:-(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.”

14. Further, in Republic Versus Ann Njeri Waihumbu & 5 Others Ex-parte Joseph Ndemi Wanjiri & 3 Others [2018] eKLR, the court expressed itself as follows:- “ It is worth noting that the established procedure for challenging taxation of bills of costs is set out in paragraph 11 of the Advocates Orderand provides that: 1) Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects;3)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on these items and the objector may within fourteen days from the receipt of the reasons apply to a judge in chambers which shall be served on all the parties concerned, setting out the grounds of his objection;3)Any person aggrieved by the decision of the Judge upon any objection referred to such judge under Sub paragraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.4)The High Court shall have power in its discretion by order enlarge the time fixed by sub paragraph (1) or sub paragraph (2) of the taking of any step, application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the court may direct, an may be so made notwithstanding that the time sought to be enlarged may have already expired.”

15. The application relates to auctioneers’ costs but the procedure for filing a reference is the same. The application dated 6/6/2022 lacks in merit and the same is accordingly dismissed with no orders as to costs.

16. Each party to bear its own costs of the application.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 7TH DAY OF OCTOBER, 2022A. N. ONGERIJUDGE