REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
HCCOMM MISC. APPL. NO. E941 OF 2020
IN THE MATTER OF THE ADVOCATES ACT
-AND-
IN THE MATTER OF THE ADVOCATES REMUNERATION ORDER
-AND-
IN THE MATTER OF THE ADVOCATE-CLIENT BILL OF COSTS.
-BETWEEN-
WACIRA WAMBUGU & COMPANY
ADVOCATES LLP……………...…………….....ADVOCATE/RESPONDENT
-VERSUS-
MUSIMBA INVESTMENTS LIMITED……………….CLIENT/APPLICANT
RULING
1. This ruling is in respect to a Chamber Summons application dated 26th September, 2022, brought under the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Paragraph 11(2) of the Advocates (Remuneration) Order and all other enabling provisions of the law. The client/applicant seeks the following orders –
1) That the client/applicant be granted leave to file a reference out of time against the decision of the Taxing Master, Hon. S.A. Opande, issued in the ruling of 28th October, 2021 in respect of the Bill of Costs dated 6th August, 2020;
2) That the said reference be deemed to have been properly filed and served within time;
3) That leave having been granted as prayed, this Honourable Court be pleased to review and/or vary part of the decision of the Taxing Master (Hon. S.A. Opande) issued in the ruling of 28th October, 2021 in respect of the Bill of Costs dated 6th August, 2020;
4) That this Honourable Court be pleased to re-assess the issue of costs to be awarded to the client/applicant and make findings on the same;
5) That in the alternative and without prejudice to the foregoing, this Honourable Court be pleased to remit the Bill of Costs to another Taxing Officer for review and reconsideration in terms of costs of the suit to be awarded to the client/applicant;
6) That this Honourable Court be pleased to make such other and/or further orders as it may deem just and fit to grant; and
7) That the costs of this application be provided for.
2. The application is premised on the grounds on the face of the Motion, and is supported by an affidavit sworn on the same day by Hon. Patrick Mweu Musimba, the applicant’s Director. In opposition thereto, the respondent filed a Notice of Preliminary Objection dated 17th January, 2023, raising the following grounds -
i) That the reference filed against the respondent has been filed out of time without seeking leave of this Honourable Court;
ii) That the client/applicant’s Chamber Summons application offends paragraph 11(2) of the Advocates Remuneration Order (2014) as the reference has been filed almost one year later from the date the Taxing Officer delivered her ruling on 28th October, 2021;
iii) That the application offends the importance of adherence to the laid down procedure in approaching a Court of law;
iv) That the suit has been brought to this Court in clear disregard of the laid down procedure and is an abuse of the due process of the Court;
v) That the client/applicant’s application is incompetent, misconceived, bad in law and lacks merit; and
vi) That this suit should be dismissed with costs.
3. The application herein was canvassed by way of written submissions. The applicant’s submissions were filed by the law firm of Andrew & Steve Advocates on 13th April, 2023, whereas the respondent’s submissions were filed by the law firm of Wacira Wambugu & Co. Advocates LLP on 9th June, 2023.
4. Mr. Kimathi, learned Counsel for the applicant relied on the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd. [1969] EA 696 and submitted that the respondent’s Preliminary Objection does not meet the threshold set out in the said case. He stated that the respondent contends that the reference has been filed out of time but a perusal of the orders sought in the application herein, and more specifically, prayer Nos. 1 & 2 reveals that the applicant is seeking leave of this Court to file a reference out of time and for the said reference to be deemed as being properly filed and served within time, which means that there is no proper reference before this Court until leave is granted to the applicant to file its reference out of time.
5. He referred to the provisions of Paragraph 11(1) & (2) of the Advocates Remuneration Order and submitted that before a party can object to the Taxing Master’s decision on taxation, he ought to give notice in writing to the Taxing Master of the items of taxation which he objects to, and the Taxing Master is then required to record and forward to the objector the reasons for his/her decision. That thereafter, the objector is at liberty to file his reference within 14 days from the date of receipt of the said reasons. Counsel cited the case of Oraro v Mbaja [2005] eKLR and stated that the respondent’s Preliminary Objection does not raise pure points of law but it is based on disputed facts hence it does not qualify as a Preliminary Objection and it should be dismissed with costs to the applicant.
6. It was stated by Mr. Kimathi that pursuant to the provisions of Paragraph 11(4) of the Advocates Remuneration Order, this Court has the power to enlarge time within which the applicant can file a reference to the High Court. That since the applicant received a letter from the Taxing Master dated 29th July, 2022 on 16th August, 2022 indicating that the reasons for her ruling are contained in the ruling dated 28th October, 2021, it ought to have filed a reference against the said ruling on or before 30th August, 2022. Mr. Kimathi relied on the decision of the Supreme Court of Kenya in the case of the County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, where the Court discussed the factors to be considered when determining an application to enlarge time. He stated that the discretion to extend time must be exercised judiciously and within the established principles of the law.
7. He stated that in dealing with such an application, the Court should consider the length and reason for the delay, the chances of the reference succeeding and the degree of prejudice that is likely to be occasioned upon the respondent. Counsel for the applicant referred to the case of George Kagima Kariuki & 2 others v George M. Gichimu & 2 others [2014] eKLR and submitted that the delay of one and a half months in filing the reference and/or application herein is not inordinate. He was of the view that the reference has an overwhelming chance of success as it challenges the Taxing Master’s failure to award costs to the applicant after holding that there existed no Advocate-Client relationship between the applicant and the respondent. Counsel contended that the respondent will suffer no prejudice in the event that leave is granted to the applicant to file a reference against the decision of the Taxing Master dated 28th October, 2021 out of time, as the respondent will have a chance to defend the intended reference.
8. Mr. Kimathi submitted that the crux of the applicant’s reference is that the Taxing Master failed to award the applicant costs of the bill of costs dated 6th August, 2020, after dismissing it for want of instructions despite the fact that the applicant had actively defended the said bill of costs. He referred to the provisions of Section 27(1) of the Civil Procedure Act the case of National Bank of Kenya Limited v Steve Onyango Omolo [2019] eKLR and stated that the Taxing Master by mistake or error failed to issue an order for costs in favour of the applicant in view of the fact that it was the successful party. He further referred to the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR and stated that there is an error on the face of the record in view of the fact that the Taxing Master failed to award the applicant costs of the suit despite the fact that the applicant had prayed for costs in its written submissions.
9. In submitting that that the Taxing Master failed to take into consideration matters which he should have taken into consideration such as the fact that the applicant incurred considerable costs in defending the bill of costs dated 6th August, 2020, Counsel cited the case of Farah Awad Gullet v CMC Motor Group Limited [2018] eKLR, where the Court of Appeal referred to Judicial Hints on Civil Procedure, 2nd Edition at page 101.
10. Ms. Addikah, learned Counsel for the respondent relied on the provisions of Paragraph 11(1) & (2) of the Advocates Remuneration Order and the case of Macharia & Company Advocates v Magugu [2002] 2 EA 248 and submitted that sub-paragraph 1 requires the party objecting to give notice in writing within 14 days of the items of taxation to which he objects. She stated that the applicant’s Notice dated 10th November, 2021 did not comply with the said provisions since it did not specify the items objected to thereby defeating the purpose of expeditious procedures. She further stated that the issue of when the Taxing Master’s decision was received is immaterial.
11. She contended that the reference filed herein vide a Chamber Summons application dated 26th September, 2022 is not proper having been filed approximately one year after the Taxing Master delivered her ruling on 28th October, 2021. She was of the view that the applicant had not acted promptly in filing the reference thus it is the author of its own misfortune. Counsel referred to the case of Charles Omwato Omwoyo v African Highlands & Produce Co. Ltd [2002] 1 KLR 698.
12. Ms. Addikah cited the case of the Municipal Council of Mavoko v Aristocrats Concrete Company Limited [2015] eKLR and stated that the timelines fixed by statute and subsidiary legislation are of essence since they are designed to ensure procedural order and certainty within the judicial system and advance a just and uniform dispensation of justice. She stated that the applicant has not demonstrated any sufficient grounds to impugn exercise of judicial discretion by the Taxing Master to warrant the Court’s interference. Counsel for the respondent urged this Court not to entertain the applicant’s reference which is founded and/or anchored on a defective letter of objection.
13. It was submitted by Counsel that the delay in filing the reference herein is inordinate, inexcusable and has not been sufficiently explained. In addition, that the applicant has not demonstrated adequate grounds for extension of time to file the reference. She placed reliance on the Supreme Court of Kenya case of the County Executive of Kisumu v County Government of Kisumu & 8 others (supra) and submitted that the applicant’s case is that the delay in filing a reference against the Taxing Master’s decision dated 28th October, 2021 was occasioned by the fact that the Taxing Master delayed in furnishing the applicant with reasons for her decision. Counsel stated that the applicant had not demonstrated that there was any follow up communication to the Taxing Master regarding the said ruling and/or request.
14. Ms. Addikah contended that the Taxing Master in the ruling dated 28th October, 2021 did not err by not awarding the applicant costs of the bill of costs dated 6th August, 2020. She stated that parties are always bound by their pleadings thus the applicant cannot blame the Taxing Master for failing to consider what was not raised in the pleadings or framed as one of the issues for consideration such as the issue of costs, arising from the bill of costs dated 6th August, 2020. She relied on the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR quoted by the Court in Mellen Mbera v James Theuri Wambugu [2020] eKLR. She stated that if the Court was to pronounce any claim or defence not made by the parties, it would be out of character as that would be plunging into the realm of speculation and might aggrieve the parties.
15. Counsel referred to the provisions of Section 27 of the Civil Procedure Act and submitted that the position in law is that costs are at the discretion of the Court seized of the matter, with the usual caveat being that such discretion should be exercised judiciously, on sound reasoning. She further submitted that the issue of costs is not a matter of right but of discretion that cannot be interfered with. She indicated that the Taxing Master deemed it fit not to award costs to the applicant thus she cannot be faulted for exercising her discretion judiciously. Ms. Addikah relied on the decisions in First American Bank of Kenya v Shah & others [2002] E.A.C.A 64 and Joreth Ltd v Kigano & Associates [2002] 1 E.A 92 and asserted that it is trite law that an appellate Court should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and injustice can be occasioned as a result.
ANALYSIS AND DETERMINATION.
16. I have considered the application filed herein, the grounds on the face of it and the affidavit filed in support thereof, the Notice of Preliminary Objection by the respondent and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the respondent’s Notice of Preliminary Objection should be sustained;
ii) Whether the applicant should be granted leave to file a reference out of time against the Taxing Master’s ruling dated 28th October, 2021; and
iii) Whether the applicant’s reference is merited.
17. In the affidavit filed by the applicant sworn by Hon. Patrick Mweu Musimba, he deposed that the respondent filed its Advocate-Client bill of costs dated 6th August, 2020 against the applicant for the sum of Kshs.7,940,000/= emanating from alleged professional services rendered by the respondent to the applicant in the purchase of Bell Helicopter/Taxtron 407 GXP Registration No. N5660M.
18. He averred that vide a ruling dated 28th October, 2021 the Taxing Master found that there existed no Advocate-Client relationship between the applicant and the respondent for want of instructions. That the applicant vide a letter dated 1st November, 2021 requested for a copy of the said ruling. The applicant deposed that in addition, being dissatisfied with the said ruling, it lodged its Notice of Objection to part of the Taxing Master’s decision and requested for reasons for the taxation vide a letter dated 10th November, 2021.
19. It was stated by the applicant that it made numerous follow ups on the issuance of a copy of the said ruling and the reasons for the Taxing Master’s decision but he was only issued with a copy of the Taxing Master’s ruling on 20th July, 2022. He further stated that the applicant’s Advocates on record kept following up on the reasons for the ruling as is evident from the email correspondence from the Deputy Registrar and on 16th August, 2022 they received a letter from the Taxing Master dated 29th July, 2022, intimating that the reasons for the ruling were contained in the ruling delivered on 28th October, 2021. The applicant indicated that the said ruling is silent on the issue of costs.
20. Hon. Patrick Mweu Musimba contended that the delay in filing the reference is not inordinate as he only managed to appear before a Commissioner for Oaths for execution of the affidavit in support of the application herein on 26th September, 2022 as he was out of town participating in the general elections and a subsequent Gubernatorial Petition filed in Makueni, being Makueni Election Petition No. 001 of 2022; Patrick Musimba v IEBC & others.
Whether the respondent’s Notice of Preliminary Objection should be sustained.
21. In the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court set out what constitutes a Preliminary Objection as hereunder –
“So far as I am aware, 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 parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
In the said case, Sir Charles Newbold P., stated that-
“…… the first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.” (emphasis added).
22. As was stated in the above case, a Preliminary Objection only consists of pure points of law. In this matter, the applicant contends that the respondent’s Preliminary Objection consists of disputed facts hence it should be dismissed with costs to the applicant. A perusal of the respondent’s Notice of Preliminary Objection dated 17th January, 2023 reveals that the respondent’s main grounds of objection are that the reference herein has been filed without leave of the Court and in contravention of the provisions of Paragraph 11(2) of the Advocates Remuneration Order. The applicant submitted that at the moment, there is no proper reference before this Court for determination until leave is granted to the applicant to file a reference against the ruling of the Taxing Master dated 28th October, 2021, out of time, as sought in prayers No. 1 & 2 of the instant application.
23. It is evident that the issue of whether or not the applicant has complied with the provisions of Paragraph 11(2) of the Advocates Remuneration Order and whether or not it sought leave of Court prior to filing the reference herein out of time is disputed. In order for this Court to aptly determine these issues, parties will have to adduce evidence by way of affidavits and thereafter, the Court will go through the evidence adduced and the Court record in order to ascertain the correct position. It is trite that facts that require to be analyzed and/or verified through evidence do not qualify as to be considered in Preliminary Objection, as they can only be addressed by way of affidavits.
24. This Court finds that the respondent’s Notice of Preliminary Objection dated 17th January, 2023 does not fit within the confines of what constitutes a Preliminary Objection as set out by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra). The said Notice of Preliminary Objection is dismissed with costs to the applicant.
Whether the applicant should be granted leave to file a reference out of time against the Taxing Master’s ruling dated 28th October, 2021.
25. Paragraph 11(4) of the Advocates Remuneration Order provides as follows –
“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.”
26. From the above provisions, it is evident that this Court has the discretion to extend time within which an applicant can file and/or lodge a reference against the decision of a Taxing Master. It was stated by the applicant that the Taxing Master delivered her ruling on 28th October, 2021, for the bill of costs in issue dated 6th August, 2020. Being dissatisfied with the said ruling, the applicant applied for a copy of the said ruling vide a letter dated 1st November, 2021. Thereafter, the applicant lodged a Notice of Objection to part of the Taxing Master’s decision, and requested for reasons for the decision in the taxation vide a letter dated 10th November, 2021. The applicant averred that both letters were not responded to, but it made several follow ups via email for issuance of a copy of the Taxing Master’s ruling and reasons for the said decision.
27. The applicant was eventually supplied with a copy of the said ruling on 20th July, 2022 and on 16th August, 2022, it received a letter dated 29th July, 2022 from the Taxing Master indicating that the reasons for the ruling are contained in the ruling dated 28th October, 2021.
28. The procedure for objecting to a Taxing Master’s decision is provided for under Paragraph 11(1) & (2) of the Advocates Remuneration Order, which states 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.”
29. The Taxing Master delivered her ruling on 28th October, 2021 and the applicant lodged a Notice of Objection vide a letter dated 10th November, 2021, which means that the said Notice of objection was lodged within the fourteen (14) days provided for under Paragraph 11(1) of the Advocates Remuneration Order, as it was lodged on the fourteenth (14th) day from the date of the said ruling. It was contended by the respondent that the applicant’s Notice of Objection is fatally defective as it did not specify the items objected to, thereby defeating the purpose of expeditious procedures. The said Notice of Objection states the following –
“The Taxing Officer is accordingly requested to record and forward the reasons for his decision to not award costs to the respondent in addition to furnishing us with a copy of the ruling/decision for our kind attention and further action.”
30. I am satisfied that the applicant’s Notice of Objection complied with the provisions of Paragraph 11(1) of the Advocates Remuneration Order since it was filed within time and it specified the item objected to, which is the issue of costs. Upon issuance of the aforementioned Notice, the Taxing Master was required to record and forward to the applicant the reasons for her decision on the item objected to. In this case, the applicant was furnished with the reasons for the Taxing Master’s decision on 16th August, 2022, by then, the time within which to file a reference against the Taxing Master’s ruling dated 28th October, 2021 had elapsed. This is because time started running as from 16th August, 2022, which means that the applicant ought to have lodged its reference on or before 29th August, 2022.
31. The Court of Appeal in the case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, when referring to decided cases made the following observation in regard to Paragraph 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.”
32. As set out in the above authority, 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 to the respondent should the application herein be allowed. On the length of the delay, the applicant ought to have filed its reference against the Taxing Master’s decision on or before 29th August, 2022. The application seeking leave to file a reference was filed on 28th September, 2022 approximately one month after the elapse of the time provided for under Paragraph 11(4) of the Advocates Remuneration Order.
33. The applicant averred that the delay was occasioned by the fact that its Director was out of town participating in the general elections and a subsequent Gubernatorial Petition filed in Makueni being Makueni Election Petition No. 001 of 2022; Patrick Musimba v IEBC & others, and he was only able to appear before a Commissioner for Oaths for execution of the affidavit in support of the application herein on 26th September, 2022. The respondent on the other hand submitted that the applicant has not demonstrated that there was any follow up communication to the Taxing Master regarding issuance of the said ruling in issue. I do not agree with the respondent’s point of view and find that the applicant discharged it burden of proving that it actually followed up on issuance of the Taxing Master’s ruling and the reasons for the decision made.
34. This is evidenced by the email correspondence between the Taxing Master and the applicant’s Advocates on record on issuance of the Taxing Master’s ruling and the reasons for her decision. This Court takes judicial notice of the pressure that comes with general elections especially for those actively participating in the elections or and/or contesting for various electoral seats. Further, this Court is aware of the strict timelines that are put in place in regard to the filing, hearing and determination of election petitions. Given the said circumstances and in seeking to balance the interests of the parties herein, this Court finds that the failure to comply with the provisions of Paragraph 11(2) of the Advocates Remuneration Order was not inordinate and the same is excusable.
35. On the issue of whether the applicant’s reference has any chances of succeeding, the applicant is challenging the Taxing Master’s decision on account of failure to make an order for costs in its favour. On perusal of the said ruling, I agree with the Counsel for the applicant that the respondent will not suffer any prejudice in the event the applicant is granted leave to file a reference out of time as the respondent will have an opportunity to defend it. This Court finds that the applicant has successfully made out a case for grant of leave to file a reference out of time, against the Taxing Master’s ruling dated 28th October, 2021.
Whether the applicant’s reference is merited
36. The applicant submitted that the Taxing Master’s ruling dated 28th October, 2021 was silent on the issue of costs thus there is an error on the face of the record. It further submitted that the Taxing Master by mistake or error failed to issue an order for costs in favour of the applicant in view of the fact that it actively defended the bill of costs dated 6th August, 2020. That it sought for costs of the same in its written submissions, and it was the successful party in the said bill of costs.
37. The respondent on the other hand submitted that the Taxing Master did not err in not awarding the applicant costs of the bill of costs dated 6th August, 2020 as it was not one of the issues raised in the pleadings or framed for consideration. It further submitted that costs are at the discretion of the Court seized of the matter and that discretion cannot be interfered with. The respondent contended that the Taxing Master cannot be faulted for exercising her discretion judiciously having deemed it fit not to award costs to the applicant.
38. The High Court can only interfere with the Taxing Master’s decision where there has been an error in principle and not solely on questions of quantum as that is an area where the Taxing Officer is more experienced and therefore more apt to the job. That was the Court of Appeal’s decision in the case of Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR, where the Court stated thus -
“On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.”
39. I have perused the applicant’s submissions before the Taxing Master and I find that indeed the applicant addressed the issue of costs and prayed for the respondent’s bill of costs to be struck out with costs to the client. It is therefore incorrect for the respondent to submit that the issue of costs did not come up as one of the issues for consideration and/or determination by the Taxing Master. It is not disputed that the Taxing Master’s ruling dated 28th October, 2021 was silent on the issue of costs, which means that the learned Taxing Master did not exercise her discretion and address herself on the issue of costs. As a result, this Court cannot proceed and make a determination on whether or not the learned Taxing Master exercised her discretion correctly on the said issue. Be that as it may, the Taxing Master should have addressed the issue of costs in the said ruling other than leaving it open to speculation. It is therefore this Court’s finding that the applicant’s reference is merited.
40. Pursuant to the provisions of Section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya, the applicant being the successful party shall have costs of the instant application since costs follow the event. I find that the application dated 26th September, 2022 is merited and it is allowed in the following terms –
i) Leave is hereby granted to the applicant to file a reference out of time against the Taxing Master’s ruling dated 28th October, 2021 in respect of the bill of costs dated 6th August, 2020;
ii) The applicant’s reference is hereby deemed to have been properly filed and served within time;
iii) The bill of costs dated 6th August, 2020 is hereby remitted to another Taxing Master for reconsideration of the issue of costs of the said bill of costs; and
iv) The applicant shall have costs of this application.
It is so ordered.
DELIVERED, DATED and SIGNED at NAIROBI on this 13th day of October, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Mabango h/b for Mr. Kimathi for the applicant
Ms Addikah for the respondent
Ms B. Wokabi – Court Assistant.