Kamonjo Kiburi t/a Kamonjo Kiuburi & Co Advocates v UAP Insurance Co Ltd [2018] KEHC 6385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

MISCELLANEOUS APPLICATION NO.351 OF 2017

IN THE MATTER OF ADVOCATES REMUNERATION ORDER SCHEDULE VI

-AND-

NAKURU HCCC NO. 347 OF 2010

ZACHERY SAMITA LUKORITO -VS ENVIRONMENTAL COMBUSTION CONSULTANTS & OTHERS

KAMONJO KIBURIT/A KAMONJO KIUBURI & CO ADVOCATES....RESPONDENT

-VERSUS-

UAP INSURANCE CO LTD...............................................................................APPLICANT

RULING

1. The Respondents Bill of Costs dated 1st September 2017 and filed on the 6th September 2017 was taxed by the taxing officer of this court on the 27th February 2018 in the sum of Kshs.116,138/20.

There was no opposition by the Applicants Advocates to the taxation of the Bill of Costs.

The Applicant admits having been served with the certificate of costs and demand for payment, but failed to pay the taxed costs on grounds that upon receipt of the certificate of costs, the Applicant realised that the costs had been paid prior to the taxation and that the Respondent Advocates failed to disclose the fact of payment to the taxing master.

2. By its Chamber Summons dated 12th  March 2018, the Applicant, under the provisions of Paragraph 11 of the Advocates Remuneration Order sought an order of stay of execution of the certificate of costs and further, that the decision of the Deputy Registrar being the Taxing Officer, dated 27th February 2018 and the certificate of costs dated 2nd March 2018 be set aside and that the Bill of costs dated 1st September 2017 be struck out with costs.

3. I have perused the grounds upon which the application is based and the averments in the Affidavit in support sworn by the applicants advocate David Gatonye sworn on the 12th March 2018.

4. The application was opposed by a Replying Affidavit by Kamonjo Kiburi Advocate sworn on the 19th March 2018, and basically it is averred that this court has no jurisdiction or power to set aside the certificate of costs from which no Objection or Reference has been filed in terms of the provisions of Paragraph 11 of the Advocates Remuneration Order and Order 51 Rule 1 of the Civil  Procedure Rules.

5. I have considered the parties arguments before me.

The applicant admits that no Reference is filed to the High Court in objection to the taxation at all in terms of Paragraph 11 that reads:

“(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 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.”

6. The application under consideration in my considered view cannot be a Reference or Objection to the taxation as Ms. Gitau Advocate for the applicant has submitted. No notice to the taxing officer was issued of the Applicant's intention to objection, nor a request for reasons for the taxation was made to the taxing officer.  If done, none was exhibited, nor filed.

7. This court's power's are invoked in terms of Paragraph 11 of the Advocates Remuneration Order if the said notice of objection is issued to the Taxing Officer within the 14 days and receipt of the reasons for the taxation on the itemised objections – See Court of Appeal decision in Kipkorir, Titoo & Kiara Advocates -vs- Deposit Protection Fund Board (2005) e KLR 528, Muema Kitulu & Co. Advocates -vs- Obadiah Kivinya (2011) e KLR among Others.

8. It is evident that the applicant has failed to take any steps to persuade the court to exercise its discretion under Sub paragraph 1 of Sub paragraph (2) thereof to enlarge time for taking any step towards objection to the taxation – See Musyoka & Wambua Advocates – Vs- Rustam Hira Advocate (2006) e KLR.

9. In view of the above, it is my finding that once a certificate of costs is issued, and no Objection or Reference is filed as is the case hereof, the court cannot exercise its discretion in favour of the applicant to set the certificate of costs aside or even to revisit the  taxation and struck it out as the applicant seeks.

10. I find no competent Reference on record (none is filed) to challenge the taxing officer's decision dated the 27th February 2018. - Daly & Figgis & Co Advocates -vs- Karuturi Networks Ltd and Another (2009) e KLR.  It  is only by  a Reference as contemplated under Paragraph 11 of the Advocates Remuneration Order that the High Court is donated a special jurisdiction to hear and determine an application to either stay execution or set aside a judgment arising from a certificate of costs pending hearing of a Reference.

See also HC Misc. Appl. No. 1069 of 2013 Kithi & Co. Advocates -vs- Menengai Downs Ltd (2015) e KLR (Nairobi).

11. For the above reasons I find no merit in the Applicant's chamber summons dated the 12th March 2018.

It is dismissed with costs to the Respondents.

Dated this 9th Day of May 2018.

J.N. MULWA

JUDGE