Muema Kitulu t/a Muema Kitulu Co. Advocates v Maundu [2022] KEHC 11950 (KLR)

Muema Kitulu t/a Muema Kitulu Co. Advocates v Maundu (Miscellaneous Application 820 of 2013) [2022] KEHC 11950 (KLR) (Civ) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11950 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application 820 of 2013

DO Chepkwony, J

May 12, 2022

Between

Muema Kitulu t/a Muema Kitulu Co. Advocates

Applicant

and

John Bosco Ngeta Maundu

Respondent

Ruling

1. The applicant’s application dated 9th of December 2020 seeks for orders that;a)Spent;b)This honorable court be pleased to extend the time for filing notice of objection to taxing master’s ruling and the notice of objection annexed and marked ‘A’ be deemed as duly filed and served subject to payment of the requisite court filing fees;c)This honorable court be pleased to set aside, review or substitute the taxing master’s decision issued on May 21, 2020;d)Costs of the application be provided.

2. The applicants case is that on May 21, 2020 an advocate/client bill was taxed in his favor and he was awarded Kshs 636,803. Consequently, a certificate of taxation was issued by the court and served on the respondent. That vide an application dated January 11, 2016, he sought entry of Judgment as per the taxed costs pursuant to section 52(2) of the Advocates Act. He contends that the same was objected to by the respondent on claims that fees paid to the advocate prior to the filing of the bill of costs had not been factored in. He also states that on March 31, 2017, hon Justice Sergon directed the Deputy Registrar to take accounts within 30 days and prepare a report which was submitted to the High Court on the October 19, 2017. As a result, the report was adopted and judgment entered for Kshs 404,193 on the April 13, 2018.

3. Further, the applicant avers that subject to the lengthy litigation arising from the respondent’s objection to his bill of costs, he did file a supplementary bill of costs on August 21, 2019 to recover Kshs 222,203. 90 which was dismissed vide a ruling delivered on May 21, 2020 through email. He contends that the said ruling was delivered vide the parties’ emails with no notice to either party and that he could not access his emails because his chambers had remained locked due to the Covid -19 restrictions hence he could not file a reference to object within the stipulated time. As a result, the instant application was filed.

4. On the other hand, the respondent contends that the applicant’s application lacks merit and is an abuse of court process. He further states that no justifiable reason has been advanced by the applicant to support his delay in bringing this application and in any case the appeal has no chances of success. The respondent prays that this court disregards the instant application for the aforementioned reasons.

5. Parties canvassed the application by way of written submission which I have read and considered.

Analysis and Determination. 6. Having read through the application and response by the parties together with their written submissions respectively, I find the issues for determination being:-a)Whether the applicants have argued a case to warrant the extension of time in respect of notice of objection had the taxing master’s ruling issued on May 2, 2020. b)Can the court set aside, review or substitute the said ruling.

7. On the issue of extension of time, courts have settled on the guiding principles to be observed in exercising the discretionary power to grant or deny an order for extension of time.

8. In the case of Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others[2015]eKLR, which was held thus:“As regards extension of time, this court has already laid down certain guiding principles. In the Nick Salatcase, it was thus held:“… it is clear that the discretion to extend time is indeed unfettered. it is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.“… we derive the following as the underlying principles that a court should consider in exercising such discretion:1. “extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the court;2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the court;3. whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the court;5. whether there will be any prejudice suffered by the respondents, if extension is granted;6. whether the application has been brought without undue delay; and……….”

9. Both parties agree that the said ruling was listed in the courts website for delivery but the same was then sent to the parties via email. It is the applicant’s assertion that they were not notified of this and he came to know of the same after he accessed his chambers which he could not due to Covid-19 restrictions.

10. The respondent does not deny that no notice was served on either party but avers that it was also a new way of delivering rulings and judgments adopted by courts in order to curb the spread of Covid-19, while at the same time reducing backlog. A party will be forgiven for the difficulties experienced in moving from analog to digital. The said application was brought 20 days after the delivery of the ruling and as such the delay cannot be said to be inordinate.

11. The applicant’s prayer on setting aside, reviewing or substituting the Taxing Master’s decision is ambitious in my view and aching to hearing and determining the intended objection. I decline to walk that path.

12. I find the applicant’s explanation for delay satisfactory to warrant grant for an extension. Consequently, the applicant’s application dated 9th of June, 2020 succeeds. It is hereby ordered that;1. The applicant be and is hereby granted an extension of time within which to file a Notice of objection to the Taxing Masters ruling.2. Subject to payment of requisite court filing fees, the notice of objection annexed and marked ‘A’ be and is hereby deemed as duly filed.3. Service of the notice of objection be dispensed with within 14 days from the date of this ruling.4. Costs be borne by the applicant.

RULING DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 12TH DAY OF MAY, 2022. D. O. CHEPKWONYJUDGEIn the presence of:No appearance for and by ApplicantMr. Musungu counsel for Respondent