[NOTICE OF MOTION DATED 21ST DECEMBER 2023]
1. The plaintiff filed the application dated 21st December 2023 seeking for inter alia:
a. Leave to be granted, to the plaintiff to file an objection and a taxation reference against the decision of the Taxing officer on the Defendant’s bill of costs dated 14th March 2022 out of the timelines provided in law.
b. The objection to the decision of the taxing officer and the application for reference be deemed as duly filed upon payment of requisite fees.
c. The court be pleased to review and/or set aside the taxing master’s ruling on the defendant’s bill of costs dated 14th March 2022 together with the consequential certificate of costs issued on 26th October 2023 and remit the bill of costs for fresh taxation.
d. Costs of this application be provided for.
The application is premised on the six grounds on its face, and supported by the affidavit of Lawrence Karume, director of the plaintiff, sworn on 21st December 2023. It is the plaintiff’s case that on 15th December 2023, Mumu auctioneers visited the plaintiff’s premises, and proclaimed various items in execution of Kshs. 326,580, that was awarded by the Deputy Registrar after taxing the defendants’ bill of costs dated 14th March 2022; that the plaintiff’s advocates were not served with the said bill of costs or a taxation notice hence the bill of costs was taxed in its absence; that the defendants did not inform the plaintiff that their bill of costs had been taxed resulting in the plaintiff’s inability to file its objection within the statutory timelines; that the plaintiff was condemned unheard which is contrary to the rules of natural justice, and that the plaintiff has instructed its advocates to issue a notice of objection.
2. The defendants responded to the application by filing a notice of preliminary objection dated 21st December 2023 raising the ground that it offends the provisions of Order 9 Rules 8 and 9 of the Civil Procedure Rules. They also filed a replying affidavit sworn by Reverend Justus Kimeu, 2nd respondent, on the 16th January, 2024. It is the defendants case that the plaintiff withdrew this suit 31st January 2022 with costs to the defendant; that the defendants’ advocates filed a party and party bill of costs on 22nd March 2022, that was together with a notice of taxation, served upon the plaintiff’s advocates on 7th June 2022 and an affidavit of service was filed; that the plaintiff’s advocate did not attend court for taxation though served and the matter was set down for ruling on 2nd November 2022; that the the plaintiff’s advocate was served with the notice of ruling through email and affidavit of service was filed; that upon the defendants’ advocates obtaining the certificate of costs dated the 7th November 2022, they forwarded a copy to the plaintiff and copied it to the plaintiff’s advocates; that the instant application dated the 21st December 2023 is therefore, an afterthought and has been filed with the sole intention to deny the defendant its costs.
3. On the 18th January 2024, the court gave directions on filing and exchanging submissions. The learned counsel for the plaintiff and defendants filed their submissions dated the 12th March 2024 and 5th April 2024 respectively, which the court has considered.
4. The following are in the view of this court the salient issues for determinations:
a. Whether the notice of preliminary objection dated 15th January 2024 has merit?
b. Whether the chamber summons application dated 15th January 2024 has merit or not?
c. Who bears the costs?
5. The court has carefully considered the grounds on the application and preliminary objection, the affidavit evidence, the submissions by the learned counsel, the superior courts decisions cited thereon and come to the following determinations:
a. Preliminary objections were discussed in the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR, in which the court cited the case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696, where the observed that:
“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
In the same case Sir Charles Newbold, P. stated:
“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
In the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR the Supreme Court made the following observation as relates to Preliminary Objections:
“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
b. The preliminary objection raised by the defendants is against the application by the plaintiff is that it offends Order 9 Rules 8 and 9 of the Civil Procedure Rules. The learned counsel for the plaintiff has submitted that the law firm of Kitoo & Associates came on record on the 31st January 2022 by filing the notice of change of advocates and the notice of discontinuance both dated the 25th November 2021. I have perused the record and confirmed the copies of the Notice of Change of Advocates and Notice of Discontinuance dated the 25th November 2021 were indeed filed on the 31st January 2022. The proceedings of 31st January 2022 confirms that the suit was marked withdrawn with costs to the defendants. The coram of that day indicates that Mr. Mugambi held brief for Ms. Kitoo for the plaintiff while Mrs Umara was present for the defendants.
c. Order 9 Rules 8 and 9 of the Civil Procedure Rules provides as follows:
“(1) Where a party, after having sued or defended by an advocate, intends to act in person in the cause or matter, he shall give a notice stating his intention to act in person and giving an address for service within the jurisdiction of the court in which the cause or matter is proceeding, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of intention to act in person, with the necessary modifications.
(2) The address for service given under subrule (1) shall comply with Order 6, rule 3.”
While rule 9 states as follows:
“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—
(a) upon an application with notice to all the parties; or
(b)upon a consent filed between the outgoing advocate and
the proposed incoming advocate or party intending to act in person
as the case may be.”
My understanding of the filing of the notice of change of advocates and notice of discontinuance on the same date, 31st January 2022, and the fact that Mr. Mugambi held brief for Ms. Katoo on that same date without protestations from the counsel for the defendants who was present, is confirmation that Ms. Kitoo & Associates Advocates had come on record by the time the proceedings of that day through which the suit was withdrawn, took place. The said notice of change of advocates was therefore filed in accordance with Order 9 Rule 8 of the Civil Procedure Rules and Rule 9 thereof is not applicable. The preliminary objection by the defendants is therefore without merit.
d. The defendants have through their replying affidavit detailed how the bill of costs, notice of taxation and certificate of taxation were served upon the counsel for the plaintiff. I have perused the documents annexed to the replying affidavit and those with details of counsel served or to be served carry the name of Mwaniki Gitahi & Partners, Mwaniki Gitahi & Company Advocates and jackmwaniki@yahoo.com. The Court has already confirmed that Kitoo & Associates Advocates had come on record for the plaintiff on the 31st January 2022. It follows that by the time the time the party and party bill of costs dated the 14th March 2022 was filed, on the 22nd March 2022, the counsel on record for the plaintiff, and who had authority to receive service thereof on behalf of the plaintiff, was Kitoo & Associates Advocates. There is no evidence that the defendants’ counsel served that firm of advocates with the party and party bill of costs, notice of taxation and certificate of costs. The available evidence shows that service was being effected upon the previous counsel, who was replaced on 31st January 2022. The failure to serve the plaintiff’s counsel with the party and party bill of costs meant the plaintiff was denied the opportunity to be heard during taxation, and participate in the subsequent processes, including be able to file a reference within the timelines set. I therefore find the plaintiff’s application has merit.
e. Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, states the general rule on costs which is that costs follow the event unless where there is good reasons to direct otherwise. In this instant, there is no good reasons presented to the court why the plaintiff should not have costs.
6. The orders that commends themselves to be issued in view of the foregoing determinations are as follows:
a. That the defendant’s notice of preliminary objection dated 15th January 2024 has no merit and is rejected.
b. That the plaintiff’s application vide chamber summons dated the 21st December 2023 has merit and is allowed in the following terms:
i. That Taxing Officer’s taxation ruling of 2nd November 2022 on the party and party bill of costs dated the 14th March 2022, is hereby reviewed and set aside, together with the certificate of costs dated the 26th October 2023.
ii. That the said party and party bill of costs be taxed afresh to enable the plaintiff participate.
iii. That the plaintiff is awarded costs in the application.
Orders accordingly.
1. The plaintiff filed the application dated 21st December 2023 seeking for inter alia:
a. Leave to be granted, to the plaintiff to file an objection and a taxation reference against the decision of the Taxing officer on the Defendant’s bill of costs dated 14th March 2022 out of the timelines provided in law.
b. The objection to the decision of the taxing officer and the application for reference be deemed as duly filed upon payment of requisite fees.
c. The court be pleased to review and/or set aside the taxing master’s ruling on the defendant’s bill of costs dated 14th March 2022 together with the consequential certificate of costs issued on 26th October 2023 and remit the bill of costs for fresh taxation.
d. Costs of this application be provided for.
The application is premised on the six grounds on its face, and supported by the affidavit of Lawrence Karume, director of the plaintiff, sworn on 21st December 2023. It is the plaintiff’s case that on 15th December 2023, Mumu auctioneers visited the plaintiff’s premises, and proclaimed various items in execution of Kshs. 326,580, that was awarded by the Deputy Registrar after taxing the defendants’ bill of costs dated 14th March 2022; that the plaintiff’s advocates were not served with the said bill of costs or a taxation notice hence the bill of costs was taxed in its absence; that the defendants did not inform the plaintiff that their bill of costs had been taxed resulting in the plaintiff’s inability to file its objection within the statutory timelines; that the plaintiff was condemned unheard which is contrary to the rules of natural justice, and that the plaintiff has instructed its advocates to issue a notice of objection.
2. The defendants responded to the application by filing a notice of preliminary objection dated 21st December 2023 raising the ground that it offends the provisions of Order 9 Rules 8 and 9 of the Civil Procedure Rules. They also filed a replying affidavit sworn by Reverend Justus Kimeu, 2nd respondent, on the 16th January, 2024. It is the defendants case that the plaintiff withdrew this suit 31st January 2022 with costs to the defendant; that the defendants’ advocates filed a party and party bill of costs on 22nd March 2022, that was together with a notice of taxation, served upon the plaintiff’s advocates on 7th June 2022 and an affidavit of service was filed; that the plaintiff’s advocate did not attend court for taxation though served and the matter was set down for ruling on 2nd November 2022; that the the plaintiff’s advocate was served with the notice of ruling through email and affidavit of service was filed; that upon the defendants’ advocates obtaining the certificate of costs dated the 7th November 2022, they forwarded a copy to the plaintiff and copied it to the plaintiff’s advocates; that the instant application dated the 21st December 2023 is therefore, an afterthought and has been filed with the sole intention to deny the defendant its costs.
3. On the 18th January 2024, the court gave directions on filing and exchanging submissions. The learned counsel for the plaintiff and defendants filed their submissions dated the 12th March 2024 and 5th April 2024 respectively, which the court has considered.
4. The following are in the view of this court the salient issues for determinations:
a. Whether the notice of preliminary objection dated 15th January 2024 has merit?
b. Whether the chamber summons application dated 15th January 2024 has merit or not?
c. Who bears the costs?
5. The court has carefully considered the grounds on the application and preliminary objection, the affidavit evidence, the submissions by the learned counsel, the superior courts decisions cited thereon and come to the following determinations:
a. Preliminary objections were discussed in the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR, in which the court cited the case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696, where the observed that:
“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
In the same case Sir Charles Newbold, P. stated:
“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
In the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR the Supreme Court made the following observation as relates to Preliminary Objections:
“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
b. The preliminary objection raised by the defendants is against the application by the plaintiff is that it offends Order 9 Rules 8 and 9 of the Civil Procedure Rules. The learned counsel for the plaintiff has submitted that the law firm of Kitoo & Associates came on record on the 31st January 2022 by filing the notice of change of advocates and the notice of discontinuance both dated the 25th November 2021. I have perused the record and confirmed the copies of the Notice of Change of Advocates and Notice of Discontinuance dated the 25th November 2021 were indeed filed on the 31st January 2022. The proceedings of 31st January 2022 confirms that the suit was marked withdrawn with costs to the defendants. The coram of that day indicates that Mr. Mugambi held brief for Ms. Kitoo for the plaintiff while Mrs Umara was present for the defendants.
c. Order 9 Rules 8 and 9 of the Civil Procedure Rules provides as follows:
“(1) Where a party, after having sued or defended by an advocate, intends to act in person in the cause or matter, he shall give a notice stating his intention to act in person and giving an address for service within the jurisdiction of the court in which the cause or matter is proceeding, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of intention to act in person, with the necessary modifications.
(2) The address for service given under subrule (1) shall comply with Order 6, rule 3.”
While rule 9 states as follows:
“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—
(a) upon an application with notice to all the parties; or
(b)upon a consent filed between the outgoing advocate and
the proposed incoming advocate or party intending to act in person
as the case may be.”
My understanding of the filing of the notice of change of advocates and notice of discontinuance on the same date, 31st January 2022, and the fact that Mr. Mugambi held brief for Ms. Katoo on that same date without protestations from the counsel for the defendants who was present, is confirmation that Ms. Kitoo & Associates Advocates had come on record by the time the proceedings of that day through which the suit was withdrawn, took place. The said notice of change of advocates was therefore filed in accordance with Order 9 Rule 8 of the Civil Procedure Rules and Rule 9 thereof is not applicable. The preliminary objection by the defendants is therefore without merit.
d. The defendants have through their replying affidavit detailed how the bill of costs, notice of taxation and certificate of taxation were served upon the counsel for the plaintiff. I have perused the documents annexed to the replying affidavit and those with details of counsel served or to be served carry the name of Mwaniki Gitahi & Partners, Mwaniki Gitahi & Company Advocates and jackmwaniki@yahoo.com. The Court has already confirmed that Kitoo & Associates Advocates had come on record for the plaintiff on the 31st January 2022. It follows that by the time the time the party and party bill of costs dated the 14th March 2022 was filed, on the 22nd March 2022, the counsel on record for the plaintiff, and who had authority to receive service thereof on behalf of the plaintiff, was Kitoo & Associates Advocates. There is no evidence that the defendants’ counsel served that firm of advocates with the party and party bill of costs, notice of taxation and certificate of costs. The available evidence shows that service was being effected upon the previous counsel, who was replaced on 31st January 2022. The failure to serve the plaintiff’s counsel with the party and party bill of costs meant the plaintiff was denied the opportunity to be heard during taxation, and participate in the subsequent processes, including be able to file a reference within the timelines set. I therefore find the plaintiff’s application has merit.
e. Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, states the general rule on costs which is that costs follow the event unless where there is good reasons to direct otherwise. In this instant, there is no good reasons presented to the court why the plaintiff should not have costs.
6. The orders that commends themselves to be issued in view of the foregoing determinations are as follows:
a. That the defendant’s notice of preliminary objection dated 15th January 2024 has no merit and is rejected.
b. That the plaintiff’s application vide chamber summons dated the 21st December 2023 has merit and is allowed in the following terms:
i. That Taxing Officer’s taxation ruling of 2nd November 2022 on the party and party bill of costs dated the 14th March 2022, is hereby reviewed and set aside, together with the certificate of costs dated the 26th October 2023.
ii. That the said party and party bill of costs be taxed afresh to enable the plaintiff participate.
iii. That the plaintiff is awarded costs in the application.
Orders accordingly.