Ndegwa v Ol’kalou Water & Sanitation Company Limited & another [2023] KEELC 22126 (KLR)

Ndegwa v Ol’kalou Water & Sanitation Company Limited & another (Environment & Land Case 107 of 2023) [2023] KEELC 22126 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22126 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment & Land Case 107 of 2023

YM Angima, J

December 7, 2023

(FORMERLY NYAHURURU ELC NO. 85 OF 2017)

Between

Njoroge Ndegwa

Plaintiff

and

Ol’kalou Water & Sanitation Company Limited

1st Defendant

Rift Valley Water Services Board

2nd Defendant

Ruling

A. Defendants’ Application 1. Vide a chamber summons dated 28. 07. 2023 expressed to be grounded upon Sections 1A, 3A and 3B of the Civil Procedure Act, Paragraph 11(1) and (4) of the Advocates Remuneration Order and Order 21, rule 9A of the Civil Procedure Rules, (Amendment), 2020 (legal notice 22) and Section 51(2) of the Advocates Act, the Defendants sought the following orders:a.... spent;b.... Spent;c.That there be a stay of execution of the certificate of taxation dated 25. 05. 2023 and issued on the 31. 05. 2023 and any subsequent/purported decree and consequential orders pending the hearing and determination of this reference.d.That this honourable court enlarges the time within which to request for reasons from the taxing officer of a ruling delivered and certificate of costs issued on 31. 05. 2023. e.That this honourable court enlarges the time within which to file a reference against the decision of the taxing officer delivered and certificate of costs issued on 31. 05. 2023. f.That in the alternative, this honourable court be pleased to order that the respondent’s certificate of costs issued on 31. 05. 2023 and the bill of costs dated 02. 02. 2023 be set aside and taxed afresh by this honourable court.g.That in the alternative, this honourable court be pleased to order that the respondent’s certificate of costs issued on 31. 05. 2023 and the bill of costs dated 02. 02. 2023 be set aside and taxed afresh by another taxing master.h.That costs of this application be provided for.

2. The application was based upon the grounds set out on the face of the summons and the contents of the supporting affidavit sworn by Samuel K. Oruma on 28. 07. 2023 and the exhibits thereto. The Defendants stated that Plaintiff’s party and party bill of costs was taxed ex parte on 09. 03. 2023 at an amount of Kshs.9,852,962/= which was manifestly excessive given that the decretal amount was Kshs.1,000,000/= only. It was further stated that the Defendants’ advocates did not know which Deputy Registrar was sitting for taxation on the appointed date hence it took time to make the necessary inquiries so that by the time they logged into the virtual session the taxation had already been done in their absence.

3. The second reason advanced by the 2nd Defendant was that its board of directors was unable to give instructions on the bill of costs because a court order had been issued on 14. 02. 2023 in Nakuru High Court Petition No. 1 of 2023 freezing the operations, sittings and deliberations of the board. It was thus contended that the advocates on record could not effectively handle taxation of the bill of costs.

4. The third reason offered by the Defendants’ advocates was that they were unable to effectively handle taxation of the Plaintiff’s bill of costs because it was incomplete and their efforts to obtain a complete copy thereof from the Plaintiff’s advocates were futile since the latter had failed to respond to their request for a complete copy.

B. Plaintiff’s Response 5. The Plaintiff filed a replying affidavit sworn by Peter Ojare on 26. 09. 2023 in opposition to the application. It was contended that there was no indication on record to demonstrate that the instructions to the Defendants’ current advocates were ever withdrawn so as to require fresh instructions. It was further stated that the Defendants’ advocates were served with a complete copy of the party and party bill of costs and that the Defendants had failed to attend court for taxation without a reasonable explanation or excuse.

6. The Plaintiff disputed that the Defendants’ advocates were not aware which Deputy Registrar at Nyahururu was responsible for taxation of costs since there was only one Deputy Registrar assigned to the Environment and Land Ccourt hence there could be no confusion on which court was to undertake the taxation. The Plaintiff contended that the costs were properly taxed pursuant to Section 51(2) of the Advocates Act (Cap.16) and they supported the quantum and stated that the same was not excessive or inordinately high. The court was consequently urged to dismiss the application with costs.

C. Directions on Submissions 7. When the application was listed for inter partes hearing it was directed that it shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the Defendants’ submissions were filed on or about 29. 09. 2023 whereas the Plaintiff’s submissions were not on record by the time of preparation of the ruling.

D. Analysis and Determination 8. The court has considered the Defendants’ said application, the Plaintiff’s replying affidavit in opposition thereto and the material on record. The court has also considered the reasons for the Defendants’ advocates failure to attend court for taxation and the reasons for their failure to expeditiously follow up on the matter and take any necessary remedial steps.

9. The material on record shows that the Defendants never bothered to find out the status of taxation from 09. 03. 2023 until the time auctioneers served their proclamation under a warrant of attachment on 24. 07. 2023. It is evident that the Defendants’ advocates were clearly not diligent in handling the matter on behalf of their clients. There is no evidence on record to demonstrate that their instructions were ever withdrawn in this matter which was on-going at the material time. The court order from the High Court at Nakuru did not affect the capacity of advocates who were already engaged from handling their respective matters.

10. Moreover, the material on record shows that the main suit was already concluded and the only issue which was pending as at 09. 03. 2023 was taxation of costs which was a technical matter which could only be effectively handled by the advocates on record and not the client. A client is unlikely to know how many court attendances were made by the adverse party; the prescribed instruction fees; the prescribed getting up fee; and the prescribed fees for the various items in a bill of costs. Under Order 9 rule 5 of the Civil Procedure Rules, the advocate on record for a party is deemed to be the advocate acting for him in all proceedings in the matter including an appeal, unless his instructions are withdrawn by the client. The court is unable to accept that the Defendants’ advocates were unable to effectively handle the taxation because the Defendants had failed to confirm whether or not the various items in the bill were drawn to scale. The whole purpose of taxation by a taxing master is to ensure that all items in a bill of costs are taxed to scale. And it is the advocates and that the clients who should be familiar with the applicable scale fee.

11. The court is also not satisfied that service of the alleged incomplete bill of costs contributed to the Defendants’ failure to attend court for taxation or to follow up on the outcome of taxation. It could not have affected the Defendants’ ability to request for reasons for the taxation from the taxing master, or to file a reference within the prescribed period upon obtaining the reasons. The advocates were a big let down to their client in this instance since they were only jolted into action upon the auctioneers’ proclamation.

12. Be that as it may, despite the advocates dismal performance, the court has to bear in mind that the ultimate loss shall lie with the clients who are public entities. Ordinarily, a client should not be punished for the mistakes of his advocate unless the client also contributed to such mistakes or was not diligent in following up on the progress of his matter. The court is aware that the Deputy Registrar who undertook the taxation has since been transferred from Nyahururu hence it may not be possible to obtain reasons for the taxation from him without unreasonable delay. The court is thus inclined to grant the Defendants an extension of time within which to file their intended reference out of time even in the absence of reasons for taxation from the taxing master.

13. The court is also inclined to grant a stay of execution for the contested costs only pending the filing, hearing and determination of the Defendants’ reference. However, since there is no indication of any challenge to the decree, the Defendants should pay the decretal amount of Kshs.1,000,000/= together with interest thereon at court rates from the date of judgment within 30 days from the date hereof. However, the Defendants shall only pay the same amount upon the Plaintiff making payment of further court fees in the sum of Kshs.43,980/= and court collection fees of Kshs.1,500/= as notified by the Deputy Registrar vide a letter dated 28. 07. 2023.

E. Conclusion and Disposal Orders 14. The upshot of the foregoing is that although the Defendants did not provide a good and reasonable explanation for their failure to file their intended reference within the prescribed time, the court shall, nevertheless, exercise its discretion to allow the chamber summons dated 28. 07. 2023 in the following terms only:a.The Defendants are hereby granted an extension of time to file a reference against the decision of the taxing officer which resulted in the certificate of taxation dated 31. 05. 2023 for a period of 14 days from the date hereof.b.There shall be a stay of execution for the costs taxed vide the certificate of costs dated 31. 05. 2023 pending the lodging, hearing and determination of the Defendants’ reference.c.In the meantime, the Defendants shall pay the Plaintiff the decretal amount of Kshs.1,000,000/= together with interest thereof at court rates from the date of judgment within 30 days from the date hereof. However, the Defendants shall pay the same once the Deputy Registrar has confirmed in writing the Plaintiff’s payment of further court fees of Kshs.43,980/= and collection fee of Kshs.1,500/=.d.Each party shall bear his own costs of the application.e.This matter shall be mentioned on 18. 01. 2024 for further orders.Orders accordingly.

RULING DATED AND SIGNED AT NYANDARUA THIS 7TH DAY OF DECEMBER, 2023 AND DELIVERED VIA MICROSOFT TEAMS PLATFORM.In the presence of:Mr. Ndegwa for the PlaintiffMr. Okumu for the DefendantsC/A - Carol..............................Y. M. ANGIMAJUDGE