Joe N. Mwanthi & Co. Advocates v Neema Trust Company Limited [2021] KEHC 8775 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & TAX DIVISION

MISC. CASE NO. 197 OF 2018

JOE N. MWANTHI & CO. ADVOCATES.........ADVOCATE/APPLICANT

V E R S U S

NEEMA TRUST COMPANY LIMITED......DEFENDANT/RESPONDENT

RULING

1. Before this Court is the Chamber Summons dated 25th November 2019 by which the Applicant/Advocate JOE N. MWANTHI & CO. ADVOCATES seeks the following orders:-

“1) THAT the time for giving notice of objection of the entire decision and/or Ruling of the Deputy Registrar dated 28th February 2019 be enlarged or dispensed with.

2)THAT the time for filing the reference against the entire decision and/Ruling of the Deputy Registrar dated and delivered on 28th February 2019 be enlarged.

3) THAT costs of the application be provided for.”

2. The application is premised upon Rule 11(4) of the Advocates Remuneration Order, Article 159(2) of the Constitution of Kenya 2010, and all other enabling provisions of the law and was supported by JOSEPH NZYOKI MWANTHI an Advocate of the High Court of Kenya.

3. The Respondent/Client NEEMA TRUST COMPANY LIMITED opposed the application through the Grounds of Opposition dated 29th February 2020 and the Replying Affidavit dated 29th January 2020 sworn by JACKSON KIMANI MUIRURIa Director of the Defendant Company.  The application was canvassed by way of written submissions.  The Applicant / Advocate filed his written submissions on 28th February 2020 whilst the 1st Respondent / Client did not file any written submissions.

BACKGROUND

4. The Applicant / Advocate filed in the High Court his Advocate – Client Bill of Costs dated 23rd April 2018 vide Miscellaneous Cause Number 197 of 2018.  The said Bill of Costs was served upon the 1st Respondents who entered appearance through their Advocates K. M. MBURU & ASSOCIATES ADVOCATES.

5. The Bill of Costs dated 23rd April 2018 was taxed by the Hon. Deputy Registrar who delivered her Ruling on 28th February 2019 dismissing the Bill of Costs.

6. By a letter dated 4th April 2019 the Applicant notified the Taxing Master of his Objection to her Ruling and Sought to be supplied with the reasons for that decision.  The Applicant avers that by an honest mistake his letter was referenced High Court Misc. No. 198 of 2018 instead of Misc. No. 197 of 2018 and that owing to this error the Applicants objection to the Ruling of 28th February 2019 was not received within fourteen (14) days as per the requirements of Rule 11(iv) of the Advocates Remuneration Order.

7. That as a result of the mix-up and the consequent failure to give notice of his objection in Misc.  No. 197 of 2008, the Taxing Officer did not furnish the Applicant with the reasons for her decision.  It was only when the Applicant perused the Court file that he realized that the reasons for the Taxing Masters decision were infact contained in her Ruling of 28th February 2019.

8. The Applicant asserts that he has good grounds to support his objection and urges that he be granted an opportunity to ventilate the same through a Reference.

9. The Applicant went on to aver that on 7th June 2019 the Applicant filed an application seeking leave to file a Reference instead of seeking an order for enlargement of time within which to file a Reference.  The application of 7th June 2019 was withdrawn on 19th September 2019 paving the way for this present application.  The Applicant urges the Court to grant him the orders sought in this Chamber Summons.

10. In opposing the application the Respondent contends that the present application is an abuse or Court process and a waste of the Court’s time. The Respondent further contends that the Applicants objection has no basis as the Taxing Master correctly dismissed the Bill of Costs dated 23rd April 2018.  The Respondent urged the Court to dismiss this application in its entirety.

ANALYSIS AND DETERMINATION

11. I have carefully considered the Summons before me, the written submissions filed by Counsel as well as the relevant law.  The only issue for determination is whether in the circumstances this Court should enlarge the time for filing a Reference.

12. Paragraph 11 of the Advocates Remuneration Order provides as follows:-

“(4)  The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2), [and] may, with the leave of the Judge but not otherwise, appeal to the Court of Appeal.

(5)  The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for 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.”

13. The Respondents in urging the Court to dismiss the application submit that the Applicant failed to satisfactorily explain their delay in filing a Reference to the Ruling of the Taxing Master.

14. The Applicant however has endeavoured to explain how due to a mix-up he filed the objection in the wrong file.  A copy of the letter dated 4th March 2019 which the applicant wrote notifying the Hon. Deputy Registrar of their intention to object and seeking reasons for her decision is annexed to the Supporting Affidavit dated 25th November 2019 as Annexture ‘JNM 3’. This letter was dated 4th March 2019 thus it was written barely one week after the Taxing Master delivered her Ruling.  I note that the letter is referenced Misc. Cause No. 198 of 2018 instead of Misc. Cause No. 197 of 2018.

15. To err it is said is human.  There is nothing to dispute the contention that this was a genuine inadvertent error as averred by the Applicant.  In STANLEY KAHORO MWANGI & 2 OTHERS –VS- KANYAMWI TRADING COMPANY LIMITED [2015]eKLR the Court was of the view that:-

“A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour.  There has to be valid and clear reasons, upon which discretion can be favourably exercised.”

16. In the case of FAHIM YASIN TWAHA –VS- TIMAMY ISSA ABDALLA & 2 OTHERS [2015]eKLR the Supreme Court laid out some general principles in matters extension of time thus:-

“As regards extension of time, this Court has already laid down certain guiding principles.  In the Nick Salat case, it was thus held:

“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extensionand whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”

“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:

1. extension of time is not a right of a party. It is anequitable remedy that is only available to a deserving party, at the discretion of the Court;

2. a party who seeks extension of time has theburden of laying a basis, to the satisfaction of the Court;

3. whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;

4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;

5. whether there will be any prejudice suffered by the respondents, if extension is granted;

6. whether  the  application  has  been  brought  without  undue delay;and

7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

17. With regard to delay Justice Mohammed in GEORGE KAGIMA KARIUKI & 2 OTHERS –VS- GEORGE M. GICHIMU & 2 OTHERS [2014]eKLRobserved that:-

“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained.   A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour.  There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

18. I am satisfied that the Applicant has explained the delay.  I have gone through the evidence annexed to the application and noted the Applicant made an honest mistake in referencing the letter written to the Deputy Registrar.  Further the Applicant moved with haste to try and remedy the same.  It is my view that the Respondent will not suffer any prejudice should this application be allowed.  In the interest of justice, the Applicant should be allowed to file the reference out of time.

19. Accordingly this Court is inclined to exercise its discretion in favour of the Applicant.  I therefore allow this application interms of prayers (1) and (2).  I direct that the Applicant file and serve the Reference within twenty-one (21) days hereof.  Costs of the application are awarded to the Respondent.

Dated in Nairobithis 5th day of March,  2021.

…………………………………..

MAUREEN A. ODERO

JUDGE