Francis Kimani Kiige v National Hospital Insurance Fund [2017] KEHC 5926 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISC. APPLICATION NO.  13 OF 2009

IN THE MATTER OF AN APPLICATION BY FRANCIS KIMANI KIIGE FOR LEAVE TO APPLY FOR JUDICIAL REVIEW   FOR ORDERS OF MANDAMUS

BETWEEN

FRANCIS KIMANI KIIGE ………………………………………..…APPLICANT

VERSUS

NATIONAL HOSPITAL INSURANCE FUND……………......RESPONDENT

RULING

1. This  ruling determines  two applications namely, the chamber summons  dated  6th December  2016  and the notice   of motion dated  1st December  2016. In the notice of motion dated 1st December   2016, the decree holder Francis Kimani Kiige is the applicant whereas in the application dated 6th December, 2016 the Judgment debtor NHIF is the applicant.

2. The application dated 1st December, 2016 seeks orders:

1. That the administrative ruling delivered by the Deputy Registrar on 29thNovember   2016 be reviewed, declared unconstitutional   and set aside ex debite justiciae;

2. That the decree holder/ applicant  be granted  leave forthwith  by the court  to execute  the decree of the court  given on  27th  March  2012  and recover the assessed  costs  on record  from the  judgment  debtor;

3. That directors of the judgment debtor plus  the law firm  of Koskei Monda & Company Advocates be cited  and  committed  to civil  jail for a period  not exceeding  6 months for disobeying the decree issued by the  court herein on   27th March  2012   by deliberately refusing  to pay the  assessed  or taxed   costs of  kshs  469,533 which remains  undisputed  and  thereby  eroding  the dignity  and  authority  of the court to the  detriment   of the decree holder.

4. That further on in the alternative, orders of mandamus  be issued  compelling  the directors  of the judgment  debtor  to honour  and obey  forthwith  the decree  of the court  given on  27th March  2012.

5. That the judgment debtor  be compelled to pay  forthwith  the assessed or  taxed costs  shs  469,523 with interest  from the date  of  filing of the suit  owing to the  delaying  tactics  employed by  the judgment  debtor  to evade  and  avoid  or delay satisfaction of the assessed costs which remains undisputed by the judgment debtor by manipulating, from behind   the scenes, the office of the Deputy Registrar.

6. That general  damages  be assessed  for the decree holder  and  enforced  against judgment  debtor  for subverting  the alleged fundamental  human rights  of the applicant /decree –holder in collusion  with the office of the Deputy Registrar.

7. That costs be borne by the judgment debtor respondent.

3. The grounds upon which the motion is predicated are that:

1. The Deputy Registrar subverted Articles 10,19,20,21,27,28,29,40,43,47 and 48 of the Constitution by deliberately blocking execution of the decree of the court to the detriment of the decree holder and his lawyers.

2. That by so deliberately blocking execution of the aforesaid decree, the Deputy Registrar  sat on appeal  against the judgment of the court delivered on  27th March  2012 without jurisdiction contrary to the constitutional provisions (named in (1) above) to the detriment of the decree holder.

3. That such deliberate action by the judgment debtor and  the Deputy Registrar from the applicant enforcing his valid judgment yet it has not been appealed  against, the Deputy Registrar is subjecting  he decree holder  and his lawyers  to:

i. Selective application of the Rule of Law;

ii. Subverted the socio economic rights of the applicant

iii. Subjected the decree holder and his advocates to cruel and inhuman treatment and economic sanctions.

iv. Discrimination.

v. Denied the decree holder access to justice.

vi. Unlawfully deprived the decree holder of his judgment without jurisdiction contrary to Articles 10, 40, 47 and 48 of the Constitution meriting urgent intervention by the court.

4. The motion is supported  by an affidavit   sworn by Peter O. Ngoge  on 1st December 2016  reiterating the grounds while averring that after judgment was  delivered by Honourable  Korir J  on 27th March  2012, the decree holder  was  awarded costs which were taxed by the Deputy Registrar on 29th September  2016  at kshs  469,533  after interpartes  hearing of the bill of costs, which costs have not been  challenged.  That  the Deputy Registrar  has refused to allow execution for the costs and  has insisted  that there be certificate of taxation issued under Order 29 Rule 3  of the Civil Procedure Rules thereby assisting  the judgment  debtor   to evade  paying the  taxed costs  contrary to  the judgment  of  27th March  2012.

5. That the requirements  by the Deputy Registrar are unnecessary  bottlenecks and extra costs  because the  assessed  costs  are  mirrored  in the unchallenged ruling delivered by the Deputy Registrar on 29th September  2016.  That the provisions of Order 22 of the Civil Procedure Rules which deals with  execution does not mandate that execution can only proceed after certificate of stated costs is  issued by the Deputy Registrar  under Order  29 Rule  3  of the Civil Procedure  Rules, provided  the decree subject of execution is  extracted  and is on  record as  directed by this court hence a certificate of costs is  unnecessary.

6. That no prejudice will be occasioned if execution proceeds on the basis of the decree and ruling on taxation since the respondent  is aware of  how much it should pay as costs  and  was even  advised  by its  counsel  to settle  the said costs  and that they  even send  to the  decree holder’s  advocate  an email forwarding  some forms to be filled by Mr P. Ngoge for  remittance  of the taxed costs hence the Deputy Registrar  is aiding the respondent to delay and evade settling costs which is in violation of the applicant’s fundamental human rights.

7. To the affidavit of Mr P. Ngoge Advocate for the Applicant were annextures  of decree  issued  on  23rd  November 2016,ruling and reasons for taxation of costs  delivered on 29th September 2016; letter of  3rd November   2016 by Koskei & Monda advocates for the respondent indicating that the notice to show cause could not be prosecuted before issuance  of decree  or certificate  of costs,  a certificate of urgency and supporting  affidavit dated  18th November  2016  by Mr Peter O. Ngoge  advocate.

8. In opposing the notice of motion, the respondent’s counsel R.O Monda swore an affidavit on 6th December 2016. In the said replying affidavit, Mr Monda admits that costs were taxed on 29th September after which he informed his clients and sought reasons for the taxation.  That there was delay in getting the client’s instructions which they had now received to challenge the bill of costs.

9. That the application dated 18th November 2016 was never served on them and yet Honourale Odunga J had directed   that it be served.

10. That they  discovered  that  execution  had commenced  on 13th October 2016  before the  decree was issued  on  23rd  November  2016.

11. That in the ruling  for taxation, the Deputy Registrar had stated that costs be borne by an “unknown” interested party and not the respondent by stating  “ in conclusion, the  exparte applicant’s  bill of costs dated  4th April  2016  is taxed   at  469,533 all inclusive  against the 1st interested  party” and  that the applicant  acted  deceptively  by drawing  hearing  notice  in a manner  to deceive  the respondent that what was due  for hearing on  21st November 2016 and  22nd November 2016 was a notice to show cause application yet it was his application dated  18th November 2016 which he had not served.

12. That no certificate of costs has been made in the matter as per Order 21 Rule 9 of the Civil Procedure Rules hence the inclusion of the respondent’s firm is mischievous  and therefore the application should be dismissed to allow the respondent challenge the Deputy Registrar’s ruling on taxation and that since there was no certificate of costs, there will be no prejudice to the applicant.

13. In response to the replying affidavit, Mr Peter Ngoge swore a further affidavit on 14th December contending that the replying affidavit sworn by R.O. Monda advocate was full of falsehoods.

14. That on  29th November  2016  Rose Nakhungu  who introduced herself to Mr Ngoge  as a legal officer  of the  respondent  emailed  him and persuaded  him to execute  bank details  forms as annexed to his affidavit so that the respondent could  process payment  of the taxed costs  of shs  469,533  but that  Mr Ngoge  declined  to execute  the afore stated  forms as the request  was by-passing  the respondent’s advocates  on record  which would  be contrary to the Advocates’  Professional Code  of Ethics.  That there is no evidence as to when the belated instructions to challenge the bill of costs were given.

15. That the application of 18th November 2016 was not filed hence it is not in the court file for reference.

16. That the manner in which the Deputy Registrar down-scaled the over 4 million bill of costs to less than 0. 5 million and directing that the costs  be paid  by an  ‘unknown’ 1st interested  party was a collusion and  clever way   of deliberately  denying the applicant  his costs.

17. That the Deputy Registrar  ought to  have  corrected  the error under  Section 99  of the Civil Procedure Act instead  of denying  the applicant permission to proceed  and execute  the decree  and  taxed  costs.

18. That no prejudice  would be  occasioned  if the certificate  of costs  was  by passed  since the respondent  has already  been advised by their lawyers  to settle  the taxed costs  and that nonetheless, a certificate  of costs had  already  been applied for  hence the Deputy Registrar  should  uphold  the national values  and  amend  her ruling   to avoid  the  respondent  shifting  goal posts in a desperate  bid  aimed  at subverting  the rule of law.

19. That  Mr Ngoge  believes  that the respondent  may have  given a settlement  cheque to its counsel  who is   frustrating  this legal   process  by colluding  with the Deputy Registrar to insert in the ruling the nonexistent 1st interested party, among other despicable  accusations  leveled  against  the Honourable Deputy Registrar.

20. That the subsequent reference (chamber summons dated 6th December 2016 and replying affidavit of R.O. Monda advocate must have been filed without knowledge  or express  instructions of the respondent  and  with the intention  of denying justice  to the applicant  hence this  court should  intervene.

21. The parties filed written submissions to canvass both applications but  as the applications  were heard  together  by way of written  and oral  submissions, I shall  proceed to set  out the application  dated  6th June  2016 first before embarking  on the joint  written  and  oral submissions.

22. In the respondent’s  chamber of summons dated  6th June   2016   brought  under Sections  3,5, 94 and 95  of the  Civil Procedure Act  Cap  21; Rule (2)  and  (4)  of the Advocates  Remuneration  Order and  all other enabling   provisions and  enactments of the law, the respondent  seeks  for orders.

a) That there be  stay of execution  of the Ruling  and  reasons for taxation  dated  29th  September  2016  pending the  hearing and  determination of the reference herein.

b) That this Honourable court enlarges the time and grant leave to the applicant to file this reference against the decision of the taxing officer delivered on 29th September 2016 out of time.

c) That the ruling and order of the taxing master be set aside;

d) That the bill of costs be taxed a fresh.

e) That costs be in the cause.

23. The application/chamber summons is premised on the grounds that:

1) The taxing  officer rendered  a  ruling on the applicant’s bill of costs on 29th September 2016;

2) The respondent’s advocates duly notified the respondent of the said ruling   and called for further instructions in the matter.

3) The respondent’s advocate’s  also wrote  a letter dated  30th September  2016  seeking the taxing officer’s  reasons  in the belief that the same  would act  as a stay of any orders  pending   the delivery of the taxing  officer’s  reasons;

4) That the respondent has instructed the advocates to challenge the said ruling which instructions were obtained out of the time required by the Advocates Act;

5) That the reason for the delay was because of a breakdown in communication between the officials of the respondent and the advocates.  That an official of the respondent handling the matter   had travelled out of the country;

6) That there is no certificate of costs in the matter;

7) That the taxing officer failed in her assessment of costs to take into account the respondent’s written submissions herein relating to instructions fees.

8) That the taxing officer ordered an interested party a stranger   in the dispute to settle the costs.  That being “the “1st interested   party.”

9) That the taxing officer has not given sufficient reasons for awarding over 10 times the recommended instructions fees.

10) That the taxing officer proceeded on wrong principles of law in taxing the bill of costs in the sum of kshs 469,533. 00;

11) That it is in the interest of justice that the respondent be given a chance to challenge the taxation.

12) That the application will be rendered nugatory should the execution be allowed to proceed.

24. The chamber summons  is supported by an affidavit  sworn by R.O. Monda  advocate on 29th September  2009, deposing that the bill of  costs  was   taxed at shs   469,533 and he duly informed his clients  of the said  taxation.

25.  That there was delay in getting his client’s instructions which he had since received to challenge the bill of costs.

26. That on 30th September 2016 he wrote a letter to the taxing officer seeking for reasons for the taxation.  That  the taxing officer failed to take into account the respondent’s  written submissions and that she ordered a stranger an “interested  party” who   was not party to the  proceedings to settle   the costs; that  she has not given  sufficient  reasons for  awarding   costs  10 times the recommended instructions fees even after acknowledging  that there  was   nothing  complex  in the matter; that no certificate of costs has been issued.  The other depositions minor the grounds on the face of the application.

27. The chamber summons was opposed by  the applicant’s  counsel Mr P. Ngoge  who swore  an affidavit on  14th December  2016   contending  that the chamber  summons by the respondent  is intended to block  the applicant  from  getting justice  in terms of  taxed costs  since no  objection to  taxation  had been filed pursuant  to Rule  11(1)  of  the Advocates  Remuneration Order  hence the court has  no jurisdiction, to extend time  for filing any  reference  and   it must  down its tools.

28. That the respondent’s  letter  dated  30th September  2016  to the taxing officer seeking for reasons for taxation is not an objection to taxation and that it  came after the  advocate R.O. Monda  had long  advised  his client  the  respondent to  settle  the taxed bill  of costs and issued   his  client  with  a final fee note  confirming   that the matter ought to have been finalized hence this  application does not lie.

29. That there is no evidence that Mr  Monda advised  his client  to object  to the  bill of costs  after taxation  hence he is  estopped by Advocates Professional Ethics and Article 10 of the  Constitution from turning around  and  disowning   his own legal  advise   given  to his client   to settle   the taxed costs.

30. Further, that Mr  R. Monda  never advised  his client  that the bill of costs was not properly taxed or that in the taxing officer’s assessment she had  failed to  take into account  the respondent’s   written submissions relating to instructions fees hence, his assertions  are spurious   and  diversionary  allegations  which are  new innovations  meant to  scuttle the decree holder’s  constitutional  application.

31. It was further contended by Mr Ngoge that on 29th November  2016  Ms Rose  Nakhungu  a legal officer  of the respondent  called him   asking him to execute  bank detail forms  annexed, to enable  the respondent  settle   the taxed costs  which clearly  indicate that  Mr R. Monda  has not  been given any  instructions  to challenge  the  taxed bill of costs; and that he  must be on a frolic of his own  by colluding  with the Deputy Registrar  to block  execution  proceedings  and to scuttle  the constitutional  application by filing  his chamber summons  on 6th December   2012   belately  without  any clear  instructions.

32. That  Mr Ngoge refused to execute  bank  detail  forms because  he did not  want to bypass  the respondent’s  counsels on record  as that would  have been  unprofessional  of him.

33. That there is no  reason why the respondent’s officials  have not sworn  any affidavit indicating  reasons for the delay or whether  they indeed  instructed  Mr R. Monda to challenge the taxed  bill of costs, however  late hence  Mr Ngoge  believes that  Mr R.O. Monda  may have been  paid the taxed costs  to remit but  is frustrating  the applicant with  technical issues  such as strangers  to the bill of costs  being ordered to pay  these costs.

34. Further, that absence of certificate of taxation does not  prejudice  the respondent  and neither  can it  change the  ruling  of  29th September  2016  which   binds the  respondent  to settle  the taxed  costs.

35. In addition, that the applicant has  already  paid  for the said  certificate  of taxation  which should not  have  taken more than  3 minutes to execute  by the Deputy Registrar.

36. That decree and certificate of stated costs are only necessary at execution stages and not at the notice to show cause stage as to why the leave to execute decree should not be granted or issued against it.

37. The parties  advocates  also filed  written  submissions  which they briefly  highlighted  on 15th February  2017  adopting   them wholly  and urging  the court to consider  their respective  positions.

38. The submissions by the applicant filed on 9th January 2017 and by the respondent filed on 8th February  2017  are detailed  enough  and they  all mirror  their respective  positions  contained  in their respective  applications and affidavits  in support of  and in opposition to the respective parties’ applications which I have  replicated  in my consideration  herein, and   which I need  not reproduce  herein save  that  I have carefully considered  the  said submissions.

Determination

39. Having considered the twin applications, affidavits, annextures, and submissions of both parties’ advocates both in writing and orally. In my humble  view, it is first appropriate  to determine  the application for stay of execution and for enlargement  of time to file  a reference  out of time  dated  6th January  2016 before determining  the  applicant’s  application dated 1st June 2016 seeking to declare the administrative  ruling delivered   by the Deputy Registrar on 29th November  2016  unconstitutional  and that it be set  aside  ex debito  justiciae  and be reviewed, among   other orders  sought in the notice  of motion.

40. On whether the application dated 6th December 2016 is merited, the commencement point is the law relating to taxation of bill of costs   and the challenge thereto.

41. The procedure  by an aggrieved  party  to  challenge a taxation  ruling is  set out in the Advocates Remuneration  Order Paragraph 11  and  is very specific on what  an aggrieved  party should do.  A party  who intends  to challenge  a ruling   on taxation  must first  write  to the taxing officer  within 14  days from the date   of ruling of taxation, giving a notice  of objection  specifying  the items   in the bill of costs  in  respect  of  which  he is aggrieved  of and requesting the taxing master/officer  to give reasons for allowing them  as shown in the ruling.

42. It would however be superfluous for the aggrieved party to request for  reasons  for taxation  where such  reasons  are  given in the ruling like   the ruling of  29th November  2016   which is very  detailed  and  which provides  reasons for   taxation of the bill of costs.  Accordingly, it is my view  that the letter of   30th September  2016 by  the  respondent’s  counsel   to the Deputy Registrar  asking for reasons  why the bill of costs  was  taxed  at shs  469,533. 00  was but  a mere  formality and waste of judicial time which could  not serve any useful  purpose.

43. In addition, the letter of  30th September  2016 by the respondent’s counsel  is not  a notice of objection to the taxation  as it does not  specify  any item(s)  which the respondent  considered  objectionable.

44. Paragraph 11 of the Advocates Remuneration Order stipulates-

11(1) should any party object to the decision of the taxing  officer, he may  within  14 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 14 days  from the receipt  of the reasons  apply to the judge in chambers  which shall be served  on all parties  concerned, setting out the grounds   of his objection.

3)Any person aggrieved by the decision of the judge   upon any objection referred to such judge under sub paragraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

4)The High Court shall have power in its discretion by order enlarge the time fixed by subparagraph (1) or subparagraph (2) of the taking of any step.

5) Applications for such an order may be made by chamber summons   upon  giving  every  other interested   party not   less than 3  clear  days notice   in writing  or as  the court may direct, and may  so made  notwithstanding  that the time  sought to be enlarged  may have  already  expired.

45. In Ahmednasir Abdikadir &Company Advocate vs National Bank of Kenya Ltd (2) [2006] 1 EA A5 the court held that:

“ Although  Rule  11(1) of the Advocates Remuneration  Order stipulates  that any party who  wished to object  to the  decision of the taxing  officer, should do  so within 14 days  after the said  decision  and thereafter file a reference  within  14 days  from the date  of receipt  of the reasons, where the  reasons  for the taxation  on the disputed items  in the bill are already contained in, the ruling, there is no need to seek for further reasons  simply  because of  the  unfortunate  wording  of sub Rule (2) of Rule 11  of the Advocate  Remuneration Order  demands so. The said rule was not intended to be  ritualistically observed  even  when reasons  for the disputed  taxation  are already  contained in the  formal  and  considered  ruling.”

46. Odunga J in Evans Thiga Gaturu Advocate V KCB Ltd [2012] e KLR stated:

“However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish reasons.  The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring the reference.”

47. In the present case, the taxation ruling was delivered on 29th September 2016 by Honourable E. Mburu giving detailed reasons for the taxation, and in the presence of all parties’ advocates.  There was no prayer for stay.  The ruling is headed  Ruling and reasons for taxation.

48. The following day on 30th September 2016 the respondent’s counsel filed a letter to court requesting reasons for taxation.  He however never gave any notice of objection to any of the specific items as taxed.  As the reasons were in the ruling, it is  thereby  not expected  that the  taxing officer  would have  given any  reasons  and  there is  no evidence  that the respondent  sought for  such reasons  subsequently, by way of a reminder to  enable  them file  a reference.

49. No reference  was filed  and on  6th December  2016, after the applicant had filed his  application  dated  1st December   2016  after unsuccessfully trying to prosecute a notice to show cause  why  execution  should not  issue against  the respondent  is  when the respondent  filed   the  present application  seeking for  stay of execution and for enlargement  of time   to file  on the ground that the delay was occasioned by lack of  communication at the respondent’s  offices  and  which led to delay in furnishing  instructions  to file  a challenge  to the  taxation.  The respondents also  claim that  there  was  no sufficient   reason for  awarding  item 1 of instructions  fees  10 times  more than  what should  have been  awarded  in a matter  which  was not complex.  They also claim that the taxing officer ordered a stranger   1st interested party to pay costs as taxed.

50. However, the applicant has countered the respondent’s  assertions  and  contended  that the respondent’s  intentions  are   to scuttle  the constitutional  application by  the applicant  and his intended  execution for  recovery of taxed  costs  and that it has done so in concert with the Deputy Registrar.

51. Attached  to the respondent’s counsel’s  supporting  affidavit  is a letter dated  30th September 2016 notifying his client,  the respondent  herein NHIF that:

“ we  attended  court on  the  29th  day of September 2016 when the Deputy Registrar  rendered  her ruling  on the applicant’s  bill of costs.

The bill was taxed at kshs 469,533.  Kindly let us have your cheque settlement of the said amount or in the alternative your further instructions on the circumstances in the meantime please find enclosed our final fee note for the services rendered for your consideration and settlement.

Yours faithfully

For:  Koskei Monda & Company Advocates

Signed by

R.O. Monda.”

52. In the above letter, there  is no  contention  by R.O. Monda  Advocate  expressed  to his client  that the Bill  of costs  as taxed   was  excessive in the circumstances   or that  there  was  need to  challenge  it and  or that  the taxing officer  failed to take into  consideration  written  submissions  of the  respondent  on the instructions  fees.  There is no suggestion that the taxed costs ought to be challenged.

53. Nonetheless, as expected of any advocate, Mr R.O. Monda sought for his client’s settlement cheque and or instructions in the matter.

54. To date, despite  filing the application  dated  6th December  2016,  there is no evidence  that the respondent  did give  Mr R.O. Monda instructions  to challenge  the taxation or that there was a  miscommunication at the respondent’s offices  leading to delay in  furnishing  the advocate  with instructions to challenge  the taxed  bill of costs.

55.  It is for that reason that I agree with Mr Ngoge counsel for the applicant that the application for enlargement of time to file a reference is not only incompetent as no notice of objection  to the specific  items  as required  under Paragraph 11  of Advocates  Remuneration  Order, but  that it  is filed  in bad faith  and intended  to frustrate the applicant’s  lawful entitlement  to the costs decreed  by the court  and that  practice  must be  abhorred  and discouraged  by the court.

56. Court orders are meant for enforcement without being frustrated or evaded.  If Mr Monda believed that the taxing officer did order for a stranger to pay the taxed costs, did he seek clarification from the court or taxing officer?  He did not.  And  further, when he  was  advising  his client  to settle  the taxed    costs, did he believe  that his client  was  the  stranger  who was  ordered  to settle costs?

57. In addition, what does  the  decree  given on  27th  March  2012   say and or against  whom was  the decree  issued? In other words, who was decreed to pay costs to the applicant by the decree of   27th March 2012?

58. To my mind, it is the judgment of the court given on 27th March 2012 which determined who was to pay costs and not the taxing officer.  The latter’s duty  which is  a special  power  donated  by statute  to act  on behalf  of the judge to  tax the bill of costs  and  give  reasons for  the taxation and not  to declare  or pronounce ’who’ was  to pay those costs.  This is so   because the judgment of 27th March 2012 was clear that it was the respondent herein NHIF to pay costs of the proceedings, and the respondent, from that point onwards, having accepted the judgment of the court by NOT appealing  against it knew that it was only a matter of time for it to be called upon to pay off the costs awarded to the applicant against the respondent, and which costs, unless agreed   between the parties, was to be taxed by the taxing officer.

59. It therefore follows that the Deputy Registrar/taxing officer’s pronouncement that the taxed costs were to be paid by the 1st interested  party   was in error  which error  did not  prejudice  any party  or at all and which  error  was   a technical  one curable  by Article 159(2)  (d)  of the Constitution which stipulates that justice shall be  administered  without undue regard to procedural technicalities.

60. Furthermore, the taxing officer’s misdescription of the respondent  as an  1st  interested  party is a mere  misdescription of a party  which is  a  procedural technicality  and which   does not  go to the root  or substance  of the matter hence it  is curable  under Article  159(2) (d)  of the Constitution.

61. In the absence  of any evidence that the client (respondent) disagreed  with  the advocate’s ( Mr R.O. Monda’s advise   that the taxed bill of costs be settled, and in view of the uncontroverted deposition by Mr Ngoge that infact, the respondent’s  legal officer  Ms  Rose Nakhungu   called him and even   send him   bank  detail forms by email on 29th November  2016  asking  him to fill them and submit   for payment  of the taxed costs  to  be effected  to  him, this court is left with no other  inference  to make but  that the  respondent’s  counsels  are  abusing this court’s process by filing a frivolous chamber summons  seeking  stay of execution  of  taxed   costs  and  or seeking  for enlargement  of time to challenge  the taxation.

62. In my humble   view, the belated application is without merit, is an afterthought and  is intended  to delay  justice.  Article 159(2) (c) of the Constitution abhors delayed justice.

63. On the assertion that there is no certificate of stated costs or of taxation, in my humble view, that is no ground for seeking   to challenge the taxed costs or for failure to settle costs but a good reason to advise the client that   there is need for an endorsement   of the certificate of taxed or stated costs for their records, as an accountability instrument.

64. An order  of the court made in the presence  of both parties  or their advocates must be  obeyed  by the parties without conditions  unless there is stay order granted by the court and not  to be circumvented  in the name of technicalities  which are  merely  meant  to delay  justice  and  thereby subject  successful parties to mere pious  explorers  in  the judicial  process and that is  exactly  what Mr R.O. Monda  advocate  has done  to the  applicant in this case.

65. I however do not find any merit   in Mr Ngoge’s contentions that Mr R.O. Monda has colluded with the taxing officer/Deputy Registrar to deny   the applicant   his just dues.

66. The taxing officer performed   her duties  as stipulated  in the law by taxing the bill of costs which taxation none of the parties has successfully challenged. She is expected to tax or assess costs and administer the execution process where parties commence such process by moving the court and there is  nothing  on record  to suggest that the Deputy Registrar  descended  into  the arena  of this dispute  to  attempt  to assist  the respondent  or their counsel  to obstruct  the course of  justice.

67. The fact that the Deputy Registrar demanded for a decree and certificate of stated costs to be extracted first before notice to show cause why execution should not issue does not mean that she was breaching the Constitution or colluding with the respondent’s counsel.

68. I do not find any illegality in the functions of the Deputy Registrar, Mrs E. Mburu in the manner that she handled this matter for; procedure is a handmaiden to substantive law.

69. In the end, I find that the respondent’s application dated 6th December 2016 is devoid of any merit.  I decline to grant it   and I dismiss it. As the respondent has taken the court and the applicant in circles since the costs were assessed without any good reason, I order that it pays costs of their application to the applicant in these proceedings, FRANCIS KIMANI KIIGE.

70. I then proceed to consider the applicant’s notice of motion dated 1st December 2016 which seeks to review or declare  unconstitutional  the administrative ruling delivered by the   Deputy Registrar  of  29th November   2016; leave to be  granted to  the applicant to  forthwith  execute the  decree given  on 27th March 2012  to  recover  costs on record  from the  judgment  debtor; citation and committal  to prison  of the firm  of Koskei Monda & Company and directors  of the judgment  debtor  for deliberately  refusing to pay the  assessed  costs; mandamus  to compel  directors   of the respondent   to pay  the assessed  costs and; damages  to be assessed  and  paid by the judgment  debtor  for subverting the alleged  fundamental  human rights  of the applicant/decree  holder   in collusion  with the  office of the Deputy Registrar; and costs  of the application.

71. The applicant  claims that the  refusal  of the Deputy Registrar  by her ruling of 29th November 2016   to allow him to  prosecute  his notice to show  cause why  execution  should not  issue against the respondent for unpaid taxed costs is  unconstitutional  and intended  to assist  the respondent evade settling costs which  it is  aware of.

72. I have examined that ruling by the Honourable Deputy Registrar.  In her assessment   of the application for notice  to show cause  why execution to show cause  should not issue, she gave  reasons  among them  is that  although  the decree  was drawn after this court gave directions, if the amount of costs  taxed   was not  in the decree, then a certificate of costs is required before the  process  of execution  starts.  She relied on order 21 Rule 9 Subrule 2 of the Civil Procedure Rules.  The learned  Deputy Registrar  found that  the notice to show cause  was premature  and  directed  the applicant  to follow  due process/procedure before making  an application for  execution.

73. According to the applicant, the Civil Procedure  Rules do not  apply to these Judicial Review  proceedings  hence  the execution should  be allowed.

74. The court notes that the Law Reform Act, the Fair Administrative Action Act and even the Constitution do not make provision for taxation of costs and or for execution of court decrees.  It follows that the court must lean on the established practice in execution proceedings.

75. For execution proceedings to commence there must be an order or decree or certificate of taxation of taxed costs,  where the decree  is not    a money  decree, then   in the event that costs  are awarded, then they must be  assessed  and  a certificate to that  effect issued  for enforcement.

76. The applicant  does acknowledge  the significance  of  a decree or certificate   of taxed  costs that  is why  he  adhered to the directive  of this court to extract  the decree.  He has also extracted a certificate of costs stated/taxation which is due for signature and sealing by the Deputy Registrar.

77. On the other hand, it is also the mandate of the Deputy Registrar to issue certificate of taxed costs before execution for their recovery.  The certificate is  a formal  expression of the  ruling  of the court  on certified  costs  and there is no  prejudice  if the same  is issued  before execution  for recovery.

78.  In the premise, I   find that  the Deputy Registrar’s  orders of  29th November  2016   are  not unconstitutional  and  neither do I  find any evidence  of collusion  between  the  respondent’s  counsel  and the Deputy Registrar to delay and  deny justice to the applicant, in as   much as  the respondent  has not been willing to  settle  the costs as taxed  based on the ruling.

79. In the end, I do not find merit in the serious allegations leveled against the Deputy Registrar by the applicant’s counsel. Had the applicant extratcted decree and certificate of stated costs, the execution process would have commenced  since there was no stay. I add that in execution proceedings, the procedure to be adopted is that which is established in the Civil procedure Rules. There is no other procedure available and execution without due process that is orderly would breed chaos. Accordingly, I decline to make a finding of fault on the Deputy Registrar’s  part.

80. On the other hand, I have already stated in this ruling that the respondent’s counsels are not candid in this matter as they have been using technicalities to assist their clients avoid settlement of costs as taxed since they knew against whom the costs were taxed and they also advised their client to settle the same hence there is absolutely no reason why they would claim that the taxing officer ordered a “stranger”to these proceedings to pay costs. I find their allegation mischievous and intended to defeat the cause of justice.

81. I decline the applicant’s application and make no orders as to costs.

82. However, in the interest of justice and  expedition, I direct  the Deputy Registrar  to issue certificate  of costs  as taxed   to enable  the applicant  proceed   to set in motion an appropriate process for execution for recovery  of costs  as assessed  by the taxing officer.

Dated, signed and delivered in open court at Nairobi this 7th day of March 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Kasim h/b for Monda for respondent

N/A for applicant

CA George