REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM MISC. APPL. NO. E200 OF 2023
IN THE MATTER OF RULE 11 OF THE ADVOCATES REMUNERATION ORDER
-AND-
IN THE MATTER OF THE ADVOCATE/CLIENT BILL OF COSTS
-BETWEEN-
NZIOKI MUTUA & ASSOCIATES…………...…..ADVOCATE/RESPONDENT
-VERSUS-
NYAMBURA FAMILY INVESTMENTS LTD……….……...1ST RESPONDENT
NYAMBURA KIVINDYO……………………………...…….2ND RESPONDENT
MARIE MUTHONI KIVINDYO…….………...3RD RESPONDENT/APPLICANT
PETER ISAI KIVINDYO………………………………….…..4TH RESPONDENT
RULING
1. The 3rd respondent/applicant filed a Chamber Summons application dated 7th March, 2023 brought under the provisions of Paragraphs 11(1) & (2) and 12 of the Advocates Remuneration Order, Sections 3A, 63(e) & 89 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law seeking the following orders –
i) Spent;
ii) Spent;
iii) That the Honourable Court be pleased to grant leave to the applicant to file the requisite objection to the Taxing Officer out of time, opposing the Certificate of Taxation dated 18th March, 2022 and the ruling of the Honourable Elizabeth Tanui that was read and delivered on 30th January, 2022;
iv) That the Honourable Court be pleased to extend the time within which the applicant may file the reference herein against the decision of the Taxing Officer delivered on 30th January, 2022 and the Certificate of Taxation dated 18th March, 2022;
v) That the objection to the Taxing Officer and the application for reference hereto be deemed as duly filed;
vi) That in the alternative, the Honourable Court be pleased to order that the Respondent’s bill of costs concerning items taxed be referred back and taxed afresh; and
vii) That the costs of this application be in the cause.
2. The application is supported by the grounds on the face of the Motion, and an affidavit sworn by Marie Muthoni Kivindyo, the 3rd respondent/applicant herein, on 7th March, 2023. The 4th respondent filed a replying affidavit sworn on 26th April, 2023 in support of the instant application. In opposition thereto, the Advocate filed a replying affidavit sworn on 14th March, 2023 by Fred Mutua, the Advocate herein, and Grounds of Opposition dated 14th March, 2023 raising the following grounds-
i) That the application is fanciful, unmeritorious, grandiose and otiose;
ii) That the applicant’s application is grossly deceptive and is guilty of laches; and
iii) That there is currently pending in the High Court in HCCCMMMisc No. E448 OF 2022-Nzioki Mutua & Associates Advocates -vs- Nyambura Family Investment Ltd, an application for judgment dated 4th October, 2022 which was due for hearing on the 13th of March 2023 (not listed for hearing) and of which the applicant further seeks to detour unjustly.
3. The instant application was canvassed by way of written submissions. The 3rd respondent’s submissions were filed by the law firm of Ngigi P.N. & Company Advocates on 5th June, 2023, whereas the Advocate’s submissions were filed on 7th June, 2023 by the law firm of Nzioki Mutua & Associates Advocates.
4. Ms. Ngigi, learned Counsel for the 3rd respondent submitted that the 3rd respondent made efforts to act as soon as she learned of the ruling delivered by the Taxing Officer in March 2022. In addition, that the 3rd respondent has demonstrated that no ruling notice was served on her thus there was no way for her to know when the Advocate’s Bill of Costs was taxed for her to lodge her objection against the said taxation within the prescribed time as set out in Rule 11 of the Advocates Remuneration Order. She further submitted that the right to be heard before an adverse decision is taken against a person is fundamental and further, it is trite that mistake of Counsel ought not to be visited upon an innocent litigant.
5. Counsel contended that the 3rd respondent has established sufficient cause to warrant this Court to extend time within which she can file a reference against the Taxing Officer’s decision as contemplated under Rule 11(1) & (2) of the Advocates Remuneration Order. Ms. Ngigi stated that the 3rd respondent is not guilty of laches in light of her persistent efforts and urged this Court to exercise its discretion in her favour and allow the application herein since she has raised merited concerns in respect to the Taxing Officer’s ruling delivered on 30th January, 2022.
6. She further stated that the 3rd respondent stands to suffer substantial loss in the event the application herein is disallowed. Counsel for the 3rd respondent asserted that the 3rd respondent’s intended reference/appeal against the Taxing Officer’s ruling dated 30th January, 2022 is merited as the Bill of Costs dated 7th June, 2021 ought to be referred back and taxed afresh since the Taxing Officer misapplied herself in law and principle.
7. Mr. Mutua, learned Counsel for the Advocate submitted that the Advocate was instructed to act for the respondents in the matter of the estate of Kivindyo Isai (deceased) where the 2nd respondent being the wife of the deceased was an administrator of the deceased’s estate. That the 2nd, 3rd & 4th respondents opted to purchase all that parcel of land known as LR. No. 209/233/6 which formed one of the deceased’s estates properties through the 1st respondent company. He further submitted that the Advocate was instructed to draw a sale agreement for the said property where he acted for both the vendor and the purchasers, however upon completion of the transaction, the respondents did not pay the Advocate’s fees for work done which resulted in the filing of a Bill of Costs dated 7th June, 2021 in Misc. Application No. E488 of 2021 to recover the same.
8. Counsel for the Advocate stated that the said Bill of Costs was taxed and thereafter, the Advocate filed an application for judgment to be entered as per the Certificate of Taxation. Subsequently, Majanja J., directed that the said application be filed in Misc. Application No. E448 of 2021 being the parent file. Counsel stated that in compliance with the said directions, the application for judgment to be entered as per the Certificate of Taxation was filed in the parent file on 27th November, 2022 and a date was fixed for hearing of that application on 13th March, 2023. He stated that it was then that the 3rd respondent filed an application seeking stay of execution of the said Certificate of Taxation and leave to file a reference out of time.
9. Mr. Mutua referred to the provisions of Rule 11(1) & (2) of the Advocates Remuneration Order and submitted that the respondents were served with a copy of the Certificate of Taxation on 21st March, 2023 but despite being out of time, they did not give notice in writing to the Taxing Officer of the items of taxation they objected to thus the instant application is premature. He relied on the case of the County Government of Tana River v Miller and Company Advocates [2021] eKLR and submitted that the application herein has been filed after a prolonged and unjustifiable delay. This is because the Advocate’s Bill of Costs dated 7th June, 2021 was taxed on 31st January, 2022, whereas the 3rd respondent filed an application seeking stay of execution of the said decision and leave to file a reference out of time on 10th March, 2023 approximately one(1) year later.
ANALYSIS AND DETERMINATION.
10. I have considered the application filed herein, the grounds on the face of the Motion and the affidavit filed in support thereof. I have also considered the replying affidavit by the 4th respondent and the Advocate as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the 3rd respondent should be granted leave to file a reference against the Taxing Officer’s ruling delivered on 31st January, 2022 out of time.
11. The 3rd respondent in her affidavit in support of the instant application deposed that the Advocate filed a Bill of Costs dated 7th June, 2021 seeking Kshs. 1,581,900.00. A ruling on the said Bill of Costs was scheduled for delivery on 20th January, 2022 but was instead delivered on 30th January, 2022 which happened to be a Sunday in her absence and also in the absence of her Advocates on record since they were not served with a notice on the same.
12. She averred that she learnt of the said ruling in March 2022 after her Advocates on record were served with a demand letter dated 21st March, 2022 and Certificate of Taxation dated 18th March, 2022. In April 2022, she filed an application dated 6th April, 2022 seeking inter alia an order for stay of execution of the Certificate of Taxation dated 18th March, 2022 in Misc. Application No. E076 of 2022 in the Family Division.
13. She further averred that on 21st June, 2022 she was served with an application dated 6th June, 2022 seeking an order that judgment be entered against the respondents for Kshs. 1,581,900.00 filed in Misc. Application No. 422 of 2022 in the Commercial and Tax Division.
14. It was stated by the 3rd respondent that this application prompted her to file a notice to withdraw her application dated 6th April, 2022 from Misc. Application No. E076 of 2022 in the Family Division and consolidate it with the Advocate’s application dated 6th June, 2022 to be heard contemporaneously by a Judge in the Commercial and Tax Division.
15. The Advocate’s application dated 6th June, 2022 was dismissed by Majanja J., and the file in Misc. Application No. 422 of 2022 was closed. She stated that the delay in filing an objection to the Taxing Officer and a reference against the Taxing Officer’s decision is not inordinate.
16. It was stated by the 3rd respondent that she is aggrieved by the Taxing Officer’s ruling delivered on 30th January, 2022 for reasons inter alia that the Taxing Officer misdirected herself in law and fact in allowing the instruction fees of Kshs. 581,818.00 that the Advocate acted for the 1st respondent who is not a vendor as per the sale agreement, and in allowing Kshs. 1,212,000.00 that the Advocate acted for the purchaser in the purchase of L.R No. 209/233/6, yet the said transaction aborted and/or did not take off.
17. The 4th defendant in his replying affidavit deposed that the ruling delivered by the Taxing Officer on 30th January, 2022 in respect to the Advocate’s Bill of Costs dated 7th June, 2021 is irregular, unlawful and it compromised his right to file a reference against it within the prescribed timelines since it was delivered on a Sunday.
18. He averred that the Advocates then extracted a Certificate of Taxation dated 18th March, 2022 and proceeded to serve the said Certificate upon the respondent’s vide a letter dated 21st March, 2022 but the said letter was addressed to the 1st respondent, a non-existing company incapable of being sued.
19. He further averred that the Court proceedings from delivery of the Taxing Officer’s ruling to the extraction of the Certificate of Taxation is riddled with anomalies and irregularities hence it is only fair and just to set aside the entire taxation proceedings and remit the Advocate’s Bill of Costs dated 7th June, 2021 for fresh taxation before another Taxing Officer.
20. The Advocate in its replying affidavit sworn by Fred Mutua deposed that the Taxing Officer delivered a ruling in respect to the Advocate’s Bill of Costs dated 7th June, 2021 on 31st January, 2022 in open Court in the presence of the Counsel representing the Advocate and the 4th respondent. Thereafter, the Advocate obtained a Certificate of Taxation.
21. Counsel stated that the instant application is a knee jerk reaction to the Advocate’s pending application for judgment having been filed a year after the Taxing Officer’s ruling to its Bill of Costs dated 7th June, 2021 was delivered. For this reason, it is undeserving of this Court’s discretion.
22. Before delving into the merits and demerits of the instant application, I wish to note that prayer No. 2 of the instant application is spent since it is seeking an order for stay of execution of the Certificate of Taxation dated 18th March, 2022 pending the hearing and determination of this application. This means that even if the Court were to grant the said order, the same would serve no purpose as it will be spent immediately I deliver this ruling.
Whether the 3rd respondent should be granted leave to file a reference out of time against the Taxing Officer’s ruling delivered on 30th January, 2022.
23. Rule 11(4) of the Advocates Remuneration Order provides that –
The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far 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, and may be so made notwithstanding that the time sought to be enlarged may have already expired
24. Under the above provisions, this Court has discretion to extend time within which an applicant can file and/or lodge a reference against the decision of a Taxing Officer. From the ruling annexed to the 3rd respondent’s affidavit in support of the instant application, it is evident that the Taxing Officer delivered a ruling in respect of the Advocate’s Bill of Costs dated 7th June, 2021 on 30th January, 2022 in the presence of Counsel representing the Advocate and the 4th respondent.
It is however noteworthy that 30th January, 2022 was a Sunday and there was no way whatsoever for the said ruling to be delivered on that particular day in the presence of any of the parties herein or their Advocates on record.
25. The 3rd respondent averred that she only got to know that the said ruling was delivered in March 2022 after her Advocates on record were served with a demand letter dated 21st March, 2022 and a Certificate of Taxation dated 18th March, 2022. Thereafter, she filed an application dated 6th April, 2022 seeking inter alia an order for stay of execution of the said Certificate of Taxation in Misc. Application No. E076 of 2022 in the Family Division. It was stated by the 3rd respondent that she was served with the Advocate’s application dated 6th June, 2022 seeking an order that judgment be entered against the respondents for Kshs. 1,581,900/= filed in Misc. Application No. 422 of 2022 in the Commercial and Tax Division.
26. Consequently, she withdrew her application dated 6th April, 2022 from Misc. Application No. E076 of 2022 in the Family Division and filed it in Misc. Application No. 422 of 2022 so as to consolidate it with the Advocate’s application dated 6th June, 2022. However, in an unfortunate turn of events, the Advocate’s application dated 6th June, 2022 was dismissed by Majanja J., consequently closing the file in Misc. Application No. 422 of 2022.
27. The Advocate on the other hand submitted that when its application dated 6th June, 2022 filed in Misc. Application No. 422 of 2022 came up for hearing before Majanja J., on 27th September, 2022, he directed that the said application be filed in Misc. Application No. 448 of 2021 being the parent file.
28. Notably, none of the parties to this application has annexed a copy of the directions and/or ruling issued by Majanja J., for this Court to ascertain whether the application dated 6th June, 2022 was dismissed or the Court directed that it be filed in Misc. Application No. 448 of 2021 thus closing file No. Misc. Application No. 422 of 2022. It is however evident from the parties’ pleadings that they all agree to the fact that the ruling/directions by Majanja J., were issued on 27th September, 2022.
29. The Court of Appeal in the case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, while referring to other authorities made the following observation with regard to Rule 11(4) of the Advocates Remuneration Order-
“The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi V Charles Gichina Mwangi – Civil Application No. Nai 26 of 2004, this Court held; -
“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi V Kenya Airways Ltd [2003] KLR 486 in which this Court stated;-Over the years, the Court has, of course set out guidelines on what a single judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso V Rose Hellen Wangari Mwangi – Civil Application No Nai 255 of 1997(unreported), the Court expressed itself thus; -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of the delay; secondly, the reasons for delay; thirdly(possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”
30. When dealing with an application under Rule 4 of the Advocates Remuneration Order, this Court has to consider the length of the delay, the reason for the delay, the chances of the reference succeeding, and the degree of prejudice that will be occasioned on the respondent should the application be allowed. The application herein was filed on 10th March, 2023, whereas Majanja J., issued his ruling/directions in Misc. Application No. 422 of 2022 in respect to the Advocate’s Application dated 6th June, 2022 on 27th September, 2022. This means that the instant application was filed approximately five (5) months after Majanja J., issued a ruling/directions in the matter that was before him.
31. Inasmuch as the delay in filing a Notice of Objection to the Taxing Officer’s decision and a reference against the said decision within the prescribed timelines set out under Rule 11(1) & (2) of the Advocates Remuneration Order has been satisfactorily explained, the 3rd respondent has not offered any explanation whatsoever as to what occasioned the delay in filing the instant application from 27th September, 2022 when Majanja J., issued his ruling/directions in Misc. Application No. 422 of 2022.
32. As to whether the 3rd respondent’s intended reference against the Taxing Officer’s decision has any chances of success, the 3rd respondent averred that she is aggrieved by the said decision for reasons inter alia, that the Taxing Officer misdirected herself in failing to consider that the transaction that gave rise to the Advocate’s Bill of Costs dated 7th June, 2021 emanated from a Court order in an existing Succession Cause No. 1493 of 2003 and that the said transaction was taxed by a competent Taxing Officer. I am of the view that the issue of whether taxation of the Advocate’s Bill of costs dated 7th June, 2021 and the contention that the transaction that gave rise to the said Bill of Costs had already been taxed by a competent Taxing Officer thus being double taxation, is an issue that is worth the Court’s consideration when dealing with the 3rd respondent’s intended reference, and it may succeed.
33. However, in light of the unexplained prolonged delay in filing the instant application, this Court finds that in the event the instant application is allowed, the Advocate will suffer substantial prejudice since it will continue being kept away from the fruits of its judgment which is against the principles of natural justice.
34. Having failed to satisfactorily explain the delay of approximately five (5) months, this Court finds that the 3rd respondent has not demonstrated and/or established sufficient cause to warrant this Court to grant her leave to file a reference against the Taxing Officer’s ruling delivered on 30th January, 2022 out of time. Courts should not be taken for granted that a litigant can delay in moving the Court and be granted an order where no explanation and/or justifiable cause for the delay has been proffered.
35. In the end, I find that the application dated 7th March, 2023 is bereft of merit. I hereby dismiss it with costs to the Advocate.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Ms Ngigi for the 3rd Respondent/applicant
Mr. Ongoro for the 4th Respondent
Ms Mwanzia h/b for Mr. Mutua for the Advocate/Respondent
Ms B. Wokabi - Court Assistant.