Makhecha & Gitonga Advocates v The Standard Group Plc [2022] KEHC 1326 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. CIVIL APPLICATION NO. E081 OF 2021

MAKHECHA & GITONGA ADVOCATES........................ADVOCATE/APPLICANT

-VERSUS-

THE STANDARD GROUP PLC.............................................CLIENT/RESPONDENT

RULING

1. The advocate/applicant herein has filed the Chamber Summons Reference (“the Reference”) dated 2nd December, 2021. The Summons is supported by the grounds set out on its face and the facts stated in the affidavit of advocate James Gathuri. The applicant sought for the following orders:

i. THAT the time set to file a reference be enlarged.

ii. THAT the taxation be varied or set aside.

iii.THAT cost of the Reference be borne by the client/respondent.

2. The respondent did not respond to the Reference or participate at the hearing thereof.

3. Pursuant to the directions issued by the court on 7th February, 2022 the application was to be disposed of through written submissions. However, at the time of writing this ruling, it is apparent from the record that none of the submissions had been availed to this court.

4. I have therefore considered the grounds set out on the body of the Summons and the facts deponed in the affidavit filed in support thereof.

5. A brief background of the matter is that the applicant filed the Advocate-Client Bill of Costs dated 8th February, 2021 and sought for the sum of Kshs.729,730. 9 arising out of HCCC no. 369 of 2012 (Patrick Njuguna v Standard Group Limited) in which the applicant acted for the respondent.

6. The same was heard by the taxing officer, Honourable L. A. Mumassabba and taxed at the sum of Kshs.370,794/= vide the ruling delivered on 27th May, 2021 followed by the Certificate of Taxation consequently issued on 14th December, 2021.

7. Returning to the Reference, it is clear that the orders sought therein are two-fold in nature.

8. The first order is for extension/enlargement of time for filing the Reference.

9. The applicant explains the delay in filing the Reference by stating that the same was occasioned by the fact that the taxing master did not forward the reasons for the ruling in good time.

10. Paragraph 11 of the Advocates Remuneration Order provides for the procedure for objecting to a decision on taxation and on the  filing of a Reference, as seen hereunder:

“(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) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (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 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.”

11. From the foregoing, it is clear that the courts have discretion to enlarge the time for the performance of any action under the above paragraph.

12. Upon my perusal of the record, I observed that on the date of delivery of the ruling on 27th May, 2021 the learned taxing master indicated that the said ruling and reasons thereof were on record, which dispels the explanation given by the applicant that there was a delay by the learned taxing master in providing the same.

13. Furthermore, a copy of the ruling and reasons is on record and is dated 27th May, 2021. Therein, the applicant was granted 14 days within which to file a Reference but it did not comply.

14. In addition, there is nothing to indicate that the applicant had complied with the proviso of Paragraph 11(1) (supra) requiring it to file a notice of objection before the taxing master if at all it had not received the reasons as claimed.

15. The order for enlargement of time is discretionary in nature. It can be granted if good cause is shown.  In the instant case, I am not satisfied that the applicant provided a reasonable explanation for the delay in order to be granted an enlargement of time within which to file the Reference.

16. Consequently, the Chamber Summons Reference dated 2nd December, 2021 lacks merit.  It is hereby ordered dismissed  with each party bearing their costs.

Dated, signed and delivered online via Microsoft Teams at Nairobi this 18th day of March, 2022.

……………………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Advocate/Applicant

……………………………. for the Client/Respondent