Douglas Mwangi Muteru v Victoria Mere Dzilla & Grace Mukami [2018] KEELC 2072 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL SUIT NO. 272 OF 2016

DOUGLAS MWANGI MUTERU.....................PLAINTIFF

VERSU

VICTORIA MERE DZILLA.........................DEFENDANT

GRACE MUKAMI............................................OBJECTOR

RULING

1. Before me for determination is a Notice of Motion dated 24th May 2018. The Applicant Douglas Mwangi Muteru prays for orders:-

1. …………

2. ………..

3. That pending the hearing and determination of this application and the reference filed herein a permanent stay of execution of the irregular orders issued on 15th May 2018 by this Honourable Court be issued;

4. That the Irregular orders issued by this Court on 15th May 2018 be set aside unconditionally; and

5. That the Costs of this Application be provided for.

2. The application is supported by the Applicant’s affidavit sworn on the same date as the application and is premised on the grounds:-

a) That the Respondent has illegally and unlawfully obtained irregular exparte orders of attachment;

b) That there is a reference filed in respect of the bill of taxation which is pending for determination;

c) That before the reference could be heard the Respondent obtained attachment orders and instructed an auctioneer to proclaim the Applicant’s goods using a back-dated Proclamation Notice; and

d) That the Applicant has never been served with the Bill of taxation and was shocked to learn of the same. The integrity and standing of the Court is being brought into disrepute unless the orders are granted.

3. In a Replying Affidavit filed herein on 8th June 2018 the Respondent –Victoria Mere Dzila avers that the Applicant’s suit was dismissed on 3rd March 2017. Subsequently the Respondent filed a Bill of Costs dated 21st March 2017 but the Applicant has always frustrated the taxation thereof. The bill was then taxed and a Certificate of Taxation issued on 7th May 2018. It is therefore the Respondent’s case that the only issue is how much should be paid and not whether the costs should be paid.

4. Otherwise the Respondent avers that the application before the Court smacks of delaying and time wasting tactics that have nothing to do with justice and urge the Court to dismiss the application.

5. I have considered the application and the response thereto. I have also considered the oral submissions made before me by Mr. Mwaniki for the Applicant and Mr. Obaga for the Respondent.

6. Taxation of Costs is in my view part of the execution process. That must be the reason Section 94 of the Civil Procedure Act provides as a general rule that execution of orders of the Court should await the confirmation of the costs of taxation unless the Court grants leave for execution before taxation of costs. The said Section is couched as follows:-

“94. Execution of decree of High Court before costs ascertained.

Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs; and as so much thereof as relates to the cost that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.”

7. Indeed for the avoidance of doubt, Section 89 of the Civil Procedure Act provides for the application of the Civil Procedure Rules in all cases of a civil nature such as the present application arising from taxation of costs. The said Section provides as follows:-

“89. Miscellaneous proceedings

The procedure provided in this Act in regard to suits shall be followed as far as it may be applicable in all proceedings in any Court of civil jurisdiction.”

8. It follows in my view, that the provisions of the Civil Procedure Act with regard to stay of execution will apply to proceedings, which are of a civil nature, for the reference of an objection to the Court from the taxation of a Bill of Costs by a Taxing Officer of the Court under the Advocates’ Remuneration Order.

9. I think this position accords with the interest of justice that a party against whom substantial sums of money have been adjudged in the nature of taxed costs should not be required to pay such monies before his challenge on the liability and quantum of the taxed costs is determined through a reference under the Advocates’ Remuneration Order, which is the procedure provided for such determination. Otherwise such references would be rendered nugatory, if eventually successful, and become a complete waste of judicial time.

10. Arising from the foregoing, a Court which is called upon to grant a stay of execution pending the hearing and determination of a reference to a Judge from taxation of costs as sought herein should be guided generally by the provisions of Order 42 Rule 6 of the Civil Procedure Rules in regard to the issue of stay pending appeal. That then means that this Court must of necessity consider whether the applicant is likely to suffer substantial loss, whether the reference has been filed without undue delay and the provision of suitable security for the due performance of the terms of the decree or order that may eventually be binding upon the applicant.

11. As it were, the Certificate of Taxation of Costs being challenged herein was issued by the Honourable J.N Wandia on 7th May 2018 certifying that the costs were taxed at Kshs 419,599/- By a letter dated 9th May 2018 the Applicant herein wrote to the Honourable Deputy Registrar giving notice of their objection and requesting to be furnished forthwith with the reasons for the decision. From a stamp embellished thereon, the said notice was received at the High Court of Malindi on the same day.

12. Thereafter by a Chamber Summons application dated and filed herein on 24th May 2018 the Applicant filed the reference setting out grounds of objection to the taxation. The said notice and reference in my view conform to the requirements of Rule 11 of the Advocates Remuneration Order and the same having been filed a few days after the Certificate of Taxation was issued, I think it is self-evident that there was no undue delay.

13. Accordingly for the reasons set out above, this Court makes the following orders:-

a) There shall be a Stay of Execution of the Certificate of Costs dated 7th May 2018 pending the hearing and determination of the reference filed herein.

b) The said stay is conditional upon the Applicant depositing in Court 50% of the amount of taxed costs being the sum of Kshs 209,799. 50/- or a Bank Guarantee thereof within 21 days from the date hereof.

c) The costs shall be in the reference.

Dated, signed and delivered at Malindi this 31st day of July, 2018.

J.O. OLOLA

JUDGE