Muli Musembi & Paulina v Ruth Katunga Isika [2018] KEELC 5 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND COURT AT  MAKUENI

ELC APPEAL  7 OF 2017

FORMERLY MACHAKOS MISC. APPLICATION NO. 148 OF 2011

FORMERLY MACHAKOS HCCA 217 OF 2014

1.  MULI  MUSEMBI..........1ST  APPEALLANTS

2. MRS. PAULINA...............2ND APPEALLANTS

VERSUS

RUTH KATUNGA ISIKA............RESPONDENT

RULING

1) Before me  is a chamber summons  application expressed to be brought  under  sections 3,5,94 and  95 of the Civil Procedure Act, Rule  11(2) and  (4) of the Advocates Remuneration  Order for  orders:-

1. Spent

2. Spent

3. That there be stay of execution of the ruling and reasons for taxation dated 4/4/2018(exparte) pending the hearing and determination of the reference herein.

4. That this honourable court enlarges the time and grant leave to the Applicant to file this reference against the decision of the taxing officer delivered on 4/4/2018 out of time.

5. That the reference filed herein be deemed as properly  filed though filed out of time.

2) The  application is dated  4th  May, 2018 and  was filed in court on 8th May, 2018 and is predicated     on grounds   on its face and  is supported  by the  supporting  and supplementary affidavits  of Musembi Muli, both sworn at Machakos on the 3rd  May, 2018 and 22nd June, 2018 respectively.

3) It is opposed  by Respondent vide his replying affidavit  sworn  at Machakos  on the 25th   May, 2018  and filed  in court  on the  29th  May, 2018.

4) On the 29th May, 2018 the court directed the parties herein to dispose off the application by way of written submissions. The Applicant filed his submissions dated  22nd June, 2018 on  even date while  the Respondent filed his on the  28th June, 2018 the same being dated the 27th June, 2018.

5) The Applicant  has  deposed in  paragraph 5 of  his   supporting affidavit  that the principles  applied by the taxing master in arriving at the  figure indicated in the proclamation  notice dated 11th April, 2018 were wrong. He went on to depose in paragraph 4 of his supporting affidavit that he has never been served with a notice to show cause.  In paragraph 7 of his supporting   affidavit, the Applicant has deposed that he has filed a preliminary objection against the taxation and that it is still pending.  He went on to depose that it is only fair that the proclamation and execution be stayed pending the reference.

6) The Appellant/Applicant filed a supplementary affidavit sworn at Machakos on 22nd June, 2018.  In paragraph 5, he has deposed that the purported taxation notice is for HCCA No.  303 of 2007 while the instant case is ELC No. 7 of 2017. The Applicant accuses the Respondent of deliberately misleading in order to proceed exparte. He goes on to depose in paragraph 9  of the supplementary affidavit that the taxing  master simply said, “ the fee charged is  reasonable”

7) In  Respondent’s replying  affidavit sworn by Mr. Francis  N. Sila , an advocate of the High Court of Kenya, at Machakos on  the  25th May, 2018 the  Respondent  terms the Appellants’ application  as an  afterthought, frivolous , vexatious  and an abuse  of the court  process. Mr. Sila   has further   deposed  in paragraph 3 of his replying  affidavit  that there is no valid  appeal on record as the notice of appeal was filed on the 2nd  March, 2013 outside the 14 days as provided  by the law.  He goes on to depose in paragraph 4 that the Appellants’  advocate  was duly served  with taxation  notice on 2nd  March, 2018 and  he duly accepted the same and that he did not  attend court on the taxation  date and so   the court proceeded to tax the bill of costs exparte.  Mr. Sila further deposed in paragraphs 6, 7 and 8 of his replying affidavit that no explanation has been given as to why the Applellants’ advocate did not attend court on the taxation date.  That the Appellant’s advocate did not attend court to prosecute his preliminary objection which in any  case was vague. That a litigant can elect to take out execution by warrant of attachment and sale or vide a notice to show cause when the judgement is more than one year old and in this instance, there was no need to serve Appellant with such  notice. Mr. Sila has deposed in paragraph 9  that what is being executed are party and  party  costs and not advocate client taxed costs and, therefore,   there was no need  to extract a decree    before  executing  the costs of appeal. Mr. Sila has also deposed in paragraph 10 that   the purported reference enumerating the reasons or items they are opposed to in the taxed costs was not annexed  and therefore, the court is left guessing as to what the Appellant is seeking   stay of execution for.

8) In  his submissions, the Applicants’ advocate  submitted that the  procedure  adopted  for execution  is irregular contrary to the law. He Rubo Kim Kimngelih Arap Cheruiyot Vs Peter Kiprop Rotich in Eldoret HCCC no 133 of 1993, a copy which he did not supply to the court. The advocate further submitted that the court should not at this stage concern itself with the  merit or otherwise of the reference   but  rather it should  concern itself with the issues raised by the Applicant which require to be ventilated in a  reference.  The advocate further cited the case of S.Gichuki Waigwa Vs  Nina Manne Ltd [2005]  eKLR, a copy which  he did not supply to court.

9) On the other hand, the Respondent’s advocate  submitted that the Applicants’ advocate  though served with a taxation notice, did not attend court on the date when the bill of costs was taxed.  He pointed out  that the advocate  has not offered any explanation for his failure to attend court. He also submitted that the Applicant has not annexed a draft copy of the reference which he seeks leave to file.

10)   I have read the application together with the supporting and the supplementary affidavits as well as the replying affidavit and the submissions filed by the parties herein and  I do agree with the Respondent’s counsel that the main prayer herein is the one for the court to enlarge time and to grant leave to the Applicant to file a reference against the decision of the taxing master.  No draft copy of the reference was annexed to the supporting affidavit.  Had this been done, the court would have been in position to see the reasons or items on the taxed costs that the Applicants are opposed to.  As the matter stands now, the court is left to guess on the issues that the Applicants intend to raise in the proposed reference.  In addition, the  Applicant’s advocate  ought  to have given  explanation as to why he did not attend court on the  day of  taxation since he had  already been  served on the 3rd  May, 2018 with a taxation notice.  He had  the chance   to argue  the preliminary  objection but  chose  not  to attend court.

11)  The upshot of the foregoing is that the Applicant’s have not placed before this court sufficient reasons for it to grant them leave to file a reference out of time.

12)  The application therefore lacks merit and same is dismissed with costs to the Respondent.

SIGNED DATED AND DELIVERED AT MAKUENI  THIS 14TH DAY OF DECEMBER, 2018

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

1st Applicant

2nd  Applicant

Mr. Kwemboi

No appearance for the Applicants

No appearance for the Respondent

MBOGO C.G, JUDGE

14/12/2018