Mbugua & Mbugua Co.Advocates v Kenindia Assurance Company Ltd [2015] KEHC 7441 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISCELLANEOUS APPLICATION NO.  664 OF 2013

MBUGUA & MBUGUA CO.ADVOCATES……………. APPLICANT

VERSUS

KENINDIA ASSURANCE COMPANY LTD…...…….RESPONDENT

RULING

The chamber summons  dated 30th May 2014  and filed  in court  on 5th June 2014 is brought  under the provisions  of paragraph (2)  of the Advocates Remuneration Order, Cap  16 Laws of Kenya ( Advocates Act).  Taxation It is a special  procedure provided by the law for challenging  or objecting  to taxed  bills  of costs by the  taxing officer or Deputy Registrar  under the  special jurisdiction conferred  by the Advocates Act, where  in so taxing, the taxing  officer sits as an officer of the superior  court exercising  delegated  powers  of a judge  of the superior court.

The application seeks 3 main orders namely:-

1) That a declaration that the bill of costs dated 2nd July 2013 and taxed on 1st April 2014 is a nullity for the reason that the bill was statute barred.

2) That in the alternative, the court may be pleased to review and or set aside the Deputy Registrar’s ruling delivered on 1st April 2014 on the advocate/client bill of costs dated 2nd July 2013.

3) That this court be pleased to make such other orders and or further orders as it may deem just and fit to make in the circumstances.

4) Costs of and accessioned by this application be provided for.

There are 2 main grounds upon which the application is premised:-

i. That  the Deputy Registrar misdirected himself in making the ruling  on taxation in respect  of  a bill which emanated  from PMCC No. 87 of 1996 which  was in effect statute barred  as the bill  was filed after  a period of more than 7 years.

ii. That  the Deputy Registrar failed  to consider  the objector’s  submission which were  though  filed late, raised  the issue of  limitation which ought to have informed  her on the  legal principle  to be followed.

The said application is further supported by the affidavit of R.N. Kitheka and annextures thereto.  The application is vehemently opposed  by the  respondent advocate  who filed  his replying  affidavit  on  21st November 2014  sworn by Joseph Njoroge  Mbugua advocate  on the same day.

The parties appeared before me on 25th November 2014 and argued their respective positions by way of oral submissions reiterating the content of the application supporting affidavit and the replying affidavit.  The parties  further agreed in principle  that this ruling be adopted in HC MISC APPL 606 of 2013 with the  necessary modification as the primary suit  in that matter  is different –SRM CC 2759/2000.

Before  delving  into the  merits  or demerits  of the application herein, an important issue  must first be resolved, and that  is the  issue of  whether  this application is competent, having been allegedly filed outside  the stipulated period  as provided for under paragraph  11 of the  Advocates Remuneration Order.  Once I determine that issue and if the answer is in the affirmation, then it will be pointless at this stage to go into the breadth and or width of the application only to waste precious judicial time and resources.

The respondent’s advocate Mr Njoroge submitted  that the  reference was incompetent  as the  ruling on taxation was given on 1st April 2014  and by dint of provisions of paragraph  11 (1)  of the Advocates Remuneration Order, the notification  of objection on the items  objected  to ought to be filed within 14 days  from  the date of taxation/ruling.  Seeking for reasons for taxation and that upon receipt of the reasons, the reference should be filed within 14 days from such date of receipt.  In his view, therefore, the notice of objection ought to have been filed before expiry of 14 days from 1st April 2014.  In addition, that  having received  the reasons  on 9th May 2014  from taxing  officer, the reference  should have been lodged  by 23rh May 2014 but instead it was lodged on 5th June 2014  which is  also outside the period  contemplated  in paragraph 11(2)  of the Advocates Remuneration Order. Further that they should have sought  enlargement  of such period where it was  clear that the time for  filing the  said  proceedings  had expired, since  an extension  is not  automatic as  it involves  the discretion of  the court. In other  words, that a  formal  application for extension of time  must be made  which has  not been  made or at all hence the reference is incompetent  and should be struck  on out  on that ground alone.

In response thereto, counsel for the  applicant –client  submitted that the notice of objection was filed in  time and  so was the reference –chamber summons  but contending that the delay was  not inordinate as it has been explained  hence the  court should ignore  it and  decide  the application substantively.

I have carefully considered the submissions above and examined the record herein.  Indeed, the taxation ruling  was delivered  on 1st April 2014  and the  objection notice was  filed on 16th April 2014, upon which  the Deputy Registrar  remarked that “reasons are in the ruling” Under the April 2014 calendar, 1st April 2014  was on a Tuesday.  The 14th day fell on  15th April 2014  which  was one day outside the period  stipulated  under paragraph 11 (1) of the Advocates Remuneration Order when the Notice of Objection  dated 15th April 2014  was filed.  The notice ought to have been filed by 15th April 2014 which  was the last day, excluding the 1st day as stipulated in the provisions of Article  259(5)  (a) of the Constitution that:

“(5) in calculating  time between  two events for  any purpose  under this  constitution, if  the time  is expressed-

(a) as days, the day on which the first event occurs  shall be excluded, and the day by  which the  last event may occur  shall be included.”

Under paragraph 11(4) of the Advocates Remuneration Order, the objection notice in writing must be filed within 14 days after the decision of the taxing officer, of the items of taxation to which the objector objects.

No doubt the notice was filed outside the stipulated 14 days.  Nonetheless the provisions  of paragraph 11(4)  gives  the application objector  an opportunity to seek the court’s discretionary powers  to be exercised  by filing  a chamber summons  seeking  for enlargement  of time  fixed by  sub paragraph (1) stated above.  In  this case, no such time was sought  by the  applicant objector, and  neither  has the said objector sought, in the course  of their counsels submissions, even by way  of oral application  for enlargement  of time.   Instead, the advocate  contended that  they  filed the notice  of objection  in time  and  that  the short  delay  has been explained.   With utmost respect to the learned advocate for the objector, he was in essence trivializing that special procedure and the limitation of time provided for under the law.

Time once stipulated by law must be adhered to for doing any act or taking any step of a judicial nature.  And where the law has gone further to provide that if such  time has  elapsed  then a party may seek  enlargement of time, and a party who is  caught up by such limitation deliberately  refuses or fails  to seek for  such enlargement  of time, the court, regrettably cannot  exercise  any discretion  in their favour  as the discretion to enlarge time can only be invoked where there is an application as stipulated under the Act and paragraph and not on the court’s own motion.  The applicant simply stated that the delay had been explained.  Such explanation could only be entertained  in  an application under sub paragraph 11(4) seeking  for enlargement  of time and  not a by the way after a serious  objection  had been  raised  by the  respondent, based  on the established provisions of the law.

Consequently, I find the notice of objection filed on 16th April 2014 and dated 15th April 2014 incompetent and proceed to strike it out.

The other issue similar  to the one above, is , therefore, whether  the reference  herein as filed on 5th June  2014  and dated 30th May 2014  is competent  before the court. The applicant in paragraph 5 of  their supporting  affidavit  contend  that they received the  reasons  for taxation ( as contained  in the ruling) on  9th May 2014  when they  went to peruse the  court file  after filing their notice of objection  on 16th April 2014  asking for reasons  for the taxation.   Under paragraph 11(2) of the Advocates Remuneration Order, the objector “may within 14 days of receipt of the reasons apply to a judge by chamber summons …………setting out the grounds of his objection.”

In this case, again examining the calendar for the month of May 2014, 9th May fell on a Wednesday.  The fourteenth day from then, excluding 9th was 23rd May 2014 which was another Wednesday.  The chamber summons was filed on 5th June 2014, 13 days later.  The applicant did not seek for enlargement of time as provided for under paragraph 11|(4) of the  Advocates Remuneration Order to validate  that period.

Instead, when challenged by the respondent, they allege the application was filed in time and that the delay if any has been explained. Limitation period does not fly in the face of the court as it confers or ousts the jurisdiction of the court to hear or from hearing matters before it.   It cannot be ignored, and particularly when there is an available window of opportunity in law for a party to utilize to ventilate their grievance.

Regrettably, the applicant has not sought to exploit that window.  The law does not contemplate that the court should suo moto grant leave or extension of time which has elapsed without a party asking for such orders.  The so called explanation could only be plausible if it was made on the right proceedings, not when it is being challenged as an issue of jurisdiction.

Jurisdiction, it is trite, is everything, without which no court should decide any dispute on merit.  Consequently, I find the objection by the respondent  merited  and I proceed to strike of  the  chamber summons  dated 30th May 2014 and filed  in court on 5th June 2014 as being  incompetently filed.

Having struck out the Notice of Objection of taxation and the reference as filed, there is nothing left for this court to decide on merit.

I hasten to add that the matter of limitation is not matters of procedural technicalities.  They go to the root of the cause and therefore Article 159 (2) (d) of the Constitution cannot aid parties who flout the provisions of the law and seek to circumvent the same to achieve their own ends.  Procedures are a means to an end not an end in them.  Without adhering to them, the law would become an unruly horse.  Procedures are handmaidens to the rule of law. This court, being the temple of justice enjoys  inherent  unlimited  jurisdiction in matter of  criminal and civil nature, save as excluded  by Article 165(5) of the Constitution  with regard  to jurisdiction  relating to disputes  referred to in Article 162 (2) a and b of the Constitution, and  those reserved  for exclusive  jurisdiction of the Supreme Court.

However, in  the interest of justice, and  bearing in mind  that the  matter explained  of in the  now defunct  reference  raise very serious  issues of law, I exercise my discretion  and grant the applicant leave to file an application under the provisions of paragraph 11(4) of the Advocates Remuneration Order.

Such application seeking for enlargement of time shall be filed within 14 days from the date of this ruling failure to which the leave herein lapses.

The respondent shall have costs of this application which is struck out.  In addition, and as agreed between the parties at the commencement of the hearing of this application and as ordered by this court, this ruling is adopted as affecting HC MISC APPL. NO. 665 /2013.

Dated, signed and delivered at Nairobi this 8th day of May 2015.

R.E. ABURILI

JUDGE

8. 5.2015

Coram Aburili J

C.C. Kavata

Mr Ndungu holding brief for Njoroge for respondent

Mr Wahome for applicant.

Court - Ruling read and pronounced in open court as scheduled after it was not cause listed for 26th February 2015.

R.E. ABURILI

JUDGE

8. 5.2015