Maina and Maina Advocates v Rashi [2025] KEHC 3319 (KLR)

Maina and Maina Advocates v Rashi (Miscellaneous Civil Application E418 of 2022) [2025] KEHC 3319 (KLR) (Commercial and Tax) (17 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3319 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Miscellaneous Civil Application E418 of 2022

JWW Mong'are, J

March 17, 2025

Between

Maina and Maina Advocates

Applicant

and

Monthida Rashi

Respondent

Ruling

Introduction and Background:- 1. On 21st November 2022, the court’s Deputy Registrar delivered a ruling (“the Ruling”) in which she certified the sum of Kshs.12,733,789. 80/= as due to the Applicants (“the Advocates”), which sum was in respect of a Bill of Costs dated 26th May 2022 (“the Bill of Costs”) filed by the Advocates arising out of the Advocates’ representation of the Respondent (“the Client”) in her purchase of a property; LR No. 209/12544(IR 76624), Upper Hill Area, Nairobi.

2. A Certificate of Costs dated 13th January 2023 for the taxed costs was issued to the Advocates who, through an application dated 8th February 2023, now seek to enforce the same as a judgment of the court together with interest at the rate of 14% per annum from 21st November 2022. This application is supported by the affidavit of Ivy Mouti sworn on 8th February 2023 and opposed by the

Client through the Grounds of Opposition dated 26th April 2024. 3. On her part, the Client has filed the application dated 26th April 2024 seeking to stay execution of the Certificate of Costs and seeking that leave be granted for her to file an objection and a reference out of time. The application is supported by the Client’s affidavit sworn on 26th April 2024 and opposed by the Advocates through the replying affidavit of Mary Munjogu, an advocate practising in the said firm, sworn on 5th June 2024. The Advocates have also filed Grounds of Opposition of the same date. The two applications have been canvassed by way of written submissions which are on record and which together with the pleadings I will make relevant references to in my analysis and determination below.

Analysis and Determination:- 4. From the pleadings and submissions, I note that the main issues that arise for the court’s determination are whether the leave should be granted to the Client to file a Notice of Objection and Reference out of time or whether the Certificate of Costs should be converted into a judgment of the court. The parties agree that Paragraphs 11 and 12 of the Advocates Remuneration Order outline the timelines and procedures to be followed once a party seeks to object to a taxing master’s decision as follows:-(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 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 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.

5. Paragraph (4) goes to state that this court ‘…shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2)..’ The Client has contended that the reason for not filing the Notice of Objection and the reference on time is that she was not aware of the Ruling and the ensuing Certificate of Costs and that she was never appraised by her then advocates of the progress of the taxation of the Bill of Costs. That she only became aware of the taxation proceedings when she was barred by Immigration Officials from leaving the country and that she could not have possibly known of this earlier. In response, the Advocates state that the Client was well aware of the proceedings as well as the delivery of the Ruling as evidenced by the affidavits of service annexed in their deposition.

6. From the Advocates’ deposition, it has not been disputed that by an email dated 20th July 2022, the Advocates served the Client with the Notice of Taxation and filed a return of service on the same. The Client acknowledged receipt of the same on 21st July 2022 and stated that her advocate will be handling the same. It has also not been disputed that the firm of MESSRS. CONRAD LAW ADVOCATES LLP informed the Advocates that they had been retained by the Client for purposes of the taxation.

7. The Advocates have annexed an affidavit of service indicating that the Bill of Costs was served upon the Client’s advocates on 20th September 2022 and that the same was opposed through submissions dated 7th October 2022. Up to this point, I find that the Client was well aware of the taxation proceedings and that through her advocates, the Bill of Costs was opposed. This is also evidenced by the Ruling which indicates that the Bill of Costs had been opposed.

8. The Advocates have also annexed the email dated 21st November 2022 informing the Client that the Ruling had been delivered and a further email dated 20th January 2023 attaching the 10 days’ Taxation Notice and Certificate of Costs. The Advocates also served the application dated 14th December 2022 through the email dated 31st January 2023.

9. I note that in all the correspondences, the Advocates were serving the Client through the same email address, which the Client had used to acknowledge receipt of the taxation notice on 21st July 2022. The Client is therefore not sincere in stating that she was never made aware of the taxation proceedings, the Ruling and the Certificate of Costs when she had personal notice and knowledge of all the ongoings of the same. I am in agreement with the Advocates’ submission that there is also no evidence by the Client that she had been following up the matter with her advocates as she claims so that it can be concluded that her advocate was at fault.

10. In any event, even if the court were to accept that her advocates were at fault, I note that despite knowledge of the Ruling, it took the Client over one year and 5 months from the date of service of the Ruling to file the present application. I find this delay inordinate and cannot be countenanced by the court and as such, no discretion can be accorded to the Client for such indolence. It should not be lost that timelines fixed by Statute or subsidiary legislation made thereunder are of essence since they are designed to achieve an intended purpose and outcome, that is, not only do they ensure procedural order and certainty within the judicial system, but also advance a just, uniform and efficient dispensation of justice and it is for that reason that courts advocate for strict compliance with such time lines (See Mario Rossi v Salama Beach Hotel Limited [2018] KECA 142 (KLR)]

11. It is for the above reasons that I find that the Client is undeserving of leave to file her Notice of Objection and Reference out of time and her application collapses at this point. Turning to the Advocates’ application for adoption of the Certificate of Costs as a judgment of the court, Section 51(2) of the Advocates Act provides that:-The certificate of the taxing officer by whom a bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.

12. The words employed in the above provision are clear and demonstrate that the intention of the Legislature is that the costs ascertained by the certificate of taxation or costs, are final with respect to costs covered therein (see Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR)). As there is no reference and the court has declined to enlarge the time for filing one, it follows that there is no valid reason to stop the court from entering judgment.

Conclusion and Disposition: - 13. In the foregoing, I make the following orders:-1. The Respondent’s application dated 26th April 2024 is dismissed2. The Applicants’ application dated 8th February 2023 is allowed on terms that judgment be and is hereby entered in favour of the Advocates against the Respondent for Kshs.12,733,789. 90/= together with interest at the rate of 14% from 21st November 2022 until payment in full.3. The Respondent shall bear the costs of the both applications which are assessed at Kshs. 50,000. 00/=.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF MARCH 2025. ........................J.W.W. MONG’AREJUDGEIn the Presence of:-1. N/A for the Applicant/Advocate.2. Ms. Jillo holding brief for Mr. Kithi for the Respondent.3. Amos - Court Assistant