Nakuru Water & Sanitation Company Limited v Odhiambo & Odhiambo Advocates [2023] KEHC 19175 (KLR)

Nakuru Water & Sanitation Company Limited v Odhiambo & Odhiambo Advocates (Miscellaneous Application 310, 342 & 347 of 2016 (Consolidated)) [2023] KEHC 19175 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19175 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application 310, 342 & 347 of 2016 (Consolidated)

HK Chemitei, J

June 29, 2023

Between

Nakuru Water & Sanitation Company Limited

Applicant

and

Odhiambo & Odhiambo Advocates

Respondent

Ruling

1. There are three sets of similar applications herein made by the applicant. The first application under Misc. Application number 310 of 2016 and is dated 31st August 2016 praying for orders that;(a)There be a stay of execution of the certificate of taxation dated 16th November 2014 and issued on the 1st of August 2016 and any other subsequent purported decree and consequential orders pending the hearing and determination of the reference.(b)The court enlarges the time within which to request for reasons from taxing officer of a ruling delivered on 16th November 2014. (c)This court enlarges the time within which to file reference against the decision of the taxing officer delivered on 16th November 2014.

2. The application is based on the grounds on the face of the application and the sworn affidavit of James Nganga Gachathi dated 31st August 2016. The main reasons are that the Deputy Registrar found that she had no jurisdiction to set aside an order on costs.

3. Further that the certificate of costs was not adopted as an order of the court as provided under section 51(2) of the Advocates Act hence the respondent was wrong in execution of the same.

4. The applicant further argued that it had already paid the respondent for the services it had rendered.

5. The respondent via the replying affidavit of Prof. Tom Ojienda dated 4th November 2016 has opposed the application citing chronology and evidence of the legal work and services the respondent undertook on behalf of the applicant and therefore it was necessary that it had to be paid for its labour.

6. Application number Misc. 342 of 2016 is on the same lines save that it seeks to stay the certificate of taxation dated 24th March 2016 and issued on 29th March 2016 pending the determination of the reference. It also seeks for time enlargement.

7. Again the same is supported by the affidavit of the said James Nganga Gachathi sworn on 6th October 2016. The reasons advanced are similar to the earlier application.

8. In the Miscellaneous Application number 347 of 2016 the prayers are similar save that the applicant is asking the court to stay the ruling dated 4th December 2015 and issued on 9th February 2016. It is also asking for enlargement of time for the taxing master to give reasons for the decision.

9. It is supported by the affidavit of James Nganga Gachathi sworn on 12th October 2016 and as stated above the reasons are the same.

10. In the three applications the respondent through Prof Tom Ojienda has opposed the same by giving chronology and the history of the legal work and services it has offered the applicant.

11. The court directed the parties to file written submissions which they have complied and the court has perused the same together with the cited authorities.

12. The court having perused the applications is of the considered view that the matters be taxed afresh. This is for the simple reasons that although the applicant may have a right of filing a reference the taxing master who is supposed to give the reasons left the station many years ago.

13. Secondly it is admitted that the respondent attempted to execute the decree before the adoption of the certificate of costs as the order of the court. Indeed, there is no evidence that the certificate of costs was adopted as the orders of the court.

14. The court has perused the court file and is unable to satisfy itself whether the applicant was served for taxation or not as the record is unclear.

15. Consequently, and taking into consideration the above reasons there is not much to be suffered by either of the parties if the taxation is done afresh. I also note that for some unexplained reasons the matters have been shuttling between various judicial officers for unnecessarily long time.

16. The issues raised by the respondent regarding the work and labour services done on behalf of the applicant shall be ventilated during fresh taxation.

17. In the premises all the earlier taxations done in all the three matters herein are hereby set aside. The execution process earlier undertaken is equally set aside as the same began on a faulty note as stated above.

18. Each party shall bear its own costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 29TH DAY OF JUNE 2023. H. K. CHEMITEIJUDGE