C. Mwangi Gachichio v Murang’a Water and Sanitation Company Ltd [2017] KEHC 2156 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

MISC CIVIL APPLICATION NO 82 OF 2015

C. MWANGI GACHICHIO……………………….............… ADVOCATE

VERSUS

MURANG’A WATER AND SANITATION COMPANY LTD…….CLIENT

R U L I N G

1. There are two references against taxation herein in respect to the Advocate’s advocate/client bill of costs dated 01/12/2015.  The taxation and the reasons therefor are contained in a ruling delivered on 21/07/2016.  The bill of costs, which was drawn at KShs 21,954,166/82, was taxed at KShs 5,970,594/00.

2. The Client’s reference is the chamber summons dated 29/07/2016while that of the Advocate is the chamber summons dated 11/08/2016.  Both references came up for hearing on 11/10/2017.  The Client’s learned counsel began as the Client’s reference was the first one in time.

3. In the course of her submissions the Client’s counsel, Miss Wanyonyi, addressed the court as follows –

“I ask the court to place aside the matter for a while to enable me peruse the court record.  I want particularly to see the ruling of the Taxing Officer that is on record as I appear not to be on the same page, as it were, with the court….”

The Advocate, C. Mwangi Gachichio, had no objection.

4. When hearing resumed, Miss Wanyonyi addressed the court as follows –

“I have now perused the court record, particularly the typed ruling on taxation.  The ruling on the court record that is signed by the Taxing Officer is quite different from the uncertified copy of the ruling that was supplied to us by the court.  We had requested for a certified copy but we were advised that it was then not available as the ruling was undergoing amendments.  It is different in many respects from the signed ruling in the court record.  Both have many hand-written amendments that have not been authenticated.  Page 6 of the copy supplied to us is quite different from page 6 of the signed ruling in the court record. I will supply the court with a copy of the ruling supplied to us.

I therefore find myself in great difficulty as we may well be dealing with 2 or more different rulings.  I seek the court’s directions”.

6. Mr. Gachichio responded as follows –

“Learned counsel for the Client supplied me with a copy of the ruling that she has in her file.  I perused it and felt that it was wanting.  So, I perused the court record and there I saw a different ruling.

The one I saw is the signed one in the court record.  It was upon that one that I prepared and filed my challenge to the taxation.

The signed ruling in the court record had, and still has, many un-authenticated alterations by hand….But I will submit to any directions that may be given by the court.”

7. Indeed Miss Wanyonyi immediately supplied to the court a copy of the unsigned ruling that she had.  While still in court I compared it to the signed ruling on the court record.  They differ in many respects.  What is more, the typed signed ruling in the court record has many unauthenticated alterations by hand, both in the text and the figures.  Unfortunately, the Taxing Officer concerned is no longer at this station as he was transferred several months ago; he is therefore not available to explain himself.  There is no proper ruling on taxation in the court record upon which the court can properly adjudicate upon the two references against the taxation.

8. In these unwholesome circumstances, justice in this matter demands that I set aside the taxation (with which both parties were not satisfied).  I hereby do so.  I direct that the advocate/client bill of costs be taxed afresh by a different Taxing Officer.  Parties shall bear their own costs of the two references.  It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 2ND DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 3RD  DAY OF NOVEMBER 2017