Makhecha & Gitonga Advocates v Standard Group Limited [2022] KEHC 9912 (KLR)

Makhecha & Gitonga Advocates v Standard Group Limited (Miscellaneous Civil Application 800 of 2019) [2022] KEHC 9912 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9912 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 800 of 2019

CW Meoli, J

July 1, 2022

Between

Makhecha & Gitonga Advocates

Applicant

and

Standard Group Limited

Respondent

Ruling

1. For determination is the chamber summons dated 24th August 2021 by Makhecha & Gitonga Advocates (hereafter the Applicant) being a reference from the taxation ruling of the taxing master delivered on 24th June 2021. The Respondent is the Standard Group Limited (hereafter the Respondent). The summons is expressed to be brought under Paragraph 11(1) & (4) of the Advocates Remuneration Order. On grounds among other that the taxing master erred in principle while taxing the bill of costs.

2. The motion is supported by affidavit sworn by Wangeci Mwangi an advocate practicing in the Applicant firm that represented the Respondent in Nairobi High Court Civil Suit No. 447 of 2015 (the primary suit) from which the taxation proceedings originated. She deposes that the taxing master failed to allow getting up fees even though the primary suit had been set down for hearing and counsel prepared to proceed with the matter. That the taxing master erred in law, principle and fact while taxing the instruction fees in asserting that the prayers sought in the plaint in the primary suit were non-monetary and the value of the subject matter not ascertainable. Thus, the court ought to vary and or set aside the taxation ruling.

3. The Respondent opposes the motion through the replying affidavit deposed by Caroline Wanjiru Githae, counsel for the Respondent who asserted that the taxed advocate-client bill of costs has since been settled; and that motion is misconceived, an abuse of the court process, bad in law, lacks merit and thus ought to be dismissed with costs.

4. Parties canvassed the motion via skeleton submission followed by oral highlighting. The Applicant referring to the prayers sought in the primary suit submitted that the taxing master misdirected herself in holding that given the non-monetary prayers in the primary suit, it was not possible to ascertain the value of the subject matter. That the sum of Kshs. 300,000/- sought in the bill of costs was within reason considering the status of the plaintiff in the primary suit and the estimated likely damages. As to whether the motion is time barred, it was argued that the taxing master forwarded the reasons for taxation on 11th August 2021 and the reference filed within 14 days on 24th August 2021 as envisaged under paragraph 11(2) of the Advocates Remuneration Order. The court was urged to allow the chamber summons.

5. The Respondent anchored its submission on the provisions of paragraph 11 of the Advocates Remuneration Order and placing reliance on the decision in Nyakundi & Co. Advocates v Kenyatta National Hospital Board [2005] eKLR argued that the reference herein is time barred as the bill of costs was taxed on 24th June 2021. It was asserted that the time for filing the reference lapsed on 7th July 2021 and could only be extended pursuant to a prayer under Paragraph 11 of the Advocates Remuneration Order. Citing the decision in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR counsel submitted that the Applicant is misleading the court as the taxed bill has since been settled, and as such, the motion is an abuse of the court process. The court was urged to dismiss the motion with costs.

6. There is no dispute that the ruling of the taxing master challenged by the Applicant was delivered on 24th June 2021 and the reference filed two months later, on 24th August 2021. The Ruling, which is on the file, indicates the attendance of both parties at delivery and clearly includes reasons thereof.

7. On the record is a letter the Applicant wrote to the court on 30th June 2021 seeking a copy of the ruling. The Applicant claimed in submissions that the ruling was furnished on 11th August 2021 but has not tendered any proof thereof. Despite early notice being given by the Respondent on the objection, no affidavit material was placed before the court to support the statement made from the bar by the Applicant. During oral highlighting, there was an allusion by the Applicant to a further affidavit having been filed in this regard, but the Respondent denied receipt of such affidavit. Nor could the court trace such affidavit on the record or on the Case Tracking System (CTS).

8. Paragraph 11 of the Advocates Remuneration Order provides:“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.(3)….(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far 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.”

9. The reference having been filed some two months since the taxing master’s decision, the onus lay with the Applicant to demonstrate that they indeed received a copy of the Ruling of the taxing master on 11th August 2021 and therefore, that the reference filed on 24th August 2021 was within the 14 days contemplated in paragraph 11(2) of the Advocates Remuneration Order. In the absence of such demonstration, the court must find that the reference was filed outside the stipulated period and without leave. Consequently, the reference must fail, and the chamber summons is hereby struck out with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 1ST DAY OF JULY 2022. C.MEOLIJUDGEIn the presence of:Ms. Wangechi Kamau for the ApplicantMr. Ngechu for the RespondentC/A: Carol