M/S Kipsang’ & Co. Advocates v Chebara Farmers Co. Ltd [2020] KEHC 169 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAKURU

MISCL. APPLICATION NO. 270 OF 2016

M/S KIPSANG’ & CO. ADVOCATES........................RESPONDENT

VERSUS

CHEBARA FARMERS CO. LTD....................................APPLICANT

AND

IN THE MATTER OF ADVOCATES (REMUNERATION-AMENDMENT) ORDER 2010

AND

IN THE MATTER OF ADVOCATE/ CLIENT COSTS RELATING TO NAKURU HCC NO. 119 OF 2001

BETWEEN

CHEBARA FARMERS CO. LTD...................DEFENDANT /APPLICANT

VERSUS

KIROBON FARMERS CO. LTD........................DEFENDANT/APPLICANT

AND

HOSEA B. CHEMWENO..............................................INTERESTED PARTY

RULING

1. An Advocate-client Bill of costs in Nakuru HCCC No.119 of 2001 dated 26th July 2016 and filed on even date, in the sum of Kshs.15,604,046/75  was on the 15th  June 2016 taxed at Kshs.516,668/=.

The advocates M/S Kipsang and Company Advocates by its application dated 18th April 2019 urged the court to stay the execution of the decree following the taxation, and review the same to enable it settle valid and lawful dues to the client.

By a ruling dated 26th September 2019, this court found no merit in the application and dismissed it as no objection or reference were filed against the taxation.

2. By an application dated 4th October 2019 and subject of this ruling,the applicant Kirobon Farmers Co. Ltd the defendant in HCCC NO. 119 of 2001 seeks for orders that

(1)   - spent

(2) That the Honourable court be pleased to   stay the    execution of the decree and certificate of costs taxed exparte on the 4th July 2018.

(3) That the Honourable court be pleased to set aside the decree dated 4th July 2018, and extend time and grant leave to the applicant to file objection to the respondents bill of costs dated 26th July 2016 and taxed ex-parte on the, 4th July 2018.

3. On the grounds that the costs are grossly exaggerated, extortionist and punitive, and therefore seeks a review to facilitate just and final determination of the matter, and further that the time set for filing of objections has lapsed hence seek enlargement to file the same.

4. In response, the respondents filed a Replying Affidavit sworn by Langat Advocate, instructed by M/S L.R. Kipsang and company advocates.

Its disposition is that the applicant has failed to pay the taxed costs of Kshs.516,668/= and has no sufficient reasons to urge the court to grant the orders sought.

5. I have considered the application and the replying affidavit.

In the first instance similar application seeking orders of stay of execution of the decree on costs was filed, and dismissed on the 26th September 2019.  This was dated the 18th April 2019.

To revisit such application would be unlawful, and Res judicata pursuant to Section 7 of the Civil Procedure Act.

6. The court has not been told nor is it aware of existence of  an appeal against the ruling dated 26th September 2019 which dismissed the application which sought a stay of execution and review of the taxed bill of costs.  In the circumstances, the said prayers are dismissed as incompetent and bad in law, as well as abuse of the court process.

7. Extension and enlargement of time to file a reference/objection to a taxation is provided under Rule 11(4) of the Advocates Remuneration Order.  It provides

The High court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) of subparagraph (2) for the taking of any step, not withstanding that the time sought to be enlarged may have already expired.

Fourteen days is the statutory period for filing any objections to a taxation.  At time of filing this application, there was a delay of one year, three months.

8. Rule 11(4) Advocates Remuneration order grants the court power and discretion to extend the time. A party who seeks for extension of time has the burden to lay a basis to the satisfaction of the court as to the cause of the delay.

The court ought to consider whether there will be prejudice to the respondent if such order is granted.

I have perused the Affidavit in support of the applicant.  No explanation for the delay of over one year has been offered.

In my view, such delay, without any explanation is unreasonable, and without any explanation or probable cause, the respondent would no doubt be prejudiced by an order of extension – see NicholasKiptoo Arap Korir Salat –vs- IEBC & 7 Others (2014) e KLR,and Ataka, Kimori & Okoth Advocates –vs- Josephine Mwango John (2019) e KLR.

9. The power granted to the court to enlarge time is intended to advance substitute justice, but should not be to advance negligence or inaction on the part of the applicant.  A good cause, implying presence of legal and adequate reasons to answer to the purpose intended ought to be advanced to persuade the court to exercise its discretion in its favour - see Republic –vs- Kenyatta University and Another ex-parte Wellington Kihato Wamburu (20018) e KLR.

10. For the above reasons, I am not persuaded to extend and/or enlarge the time for filing the objections/reference against the taxing officers taxation ruling dated the 4th July 2018.

The application is therefore dismissed with costs to the Respondent/plaintiff.

Delivered, signed and dated at Nakuru this 6th Day of January 2020.

……………………….

J. N. MULWA

JUDGE