Nderitu & Waturu Associates Advocates v Peter Kagunyu Kiragu [2021] KEELC 1941 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

MISC APPLICATION NO. 37 OF 2018

NDERITU & WATURU  ASSOCIATESADVOCATES.........APPLICANT/RESPONDENT

VERSUS

PETER KAGUNYU KIRAGU...................................................RESPONDENT/APPLICANT

RULING

The matter for determination is the  Notice of Motion Application dated  17th  September  2020, by the Respondent/ Applicant seeking for orders that;

1. That  the Ruling and orders  issued by Hon. V. Kachuodho  Deputy Registrar  on 19th  September  2019 be set aside.

2.  That the Certificate of  Taxation  dated13th August  2020, be set aside.

3.  That the Advocates Bill of costs  dated 19th October  2018 be taxed  afresh.

4.  That costs of this Application be provided for.

The Application is premised on the grounds that  the Respondent /Applicant disputes  the taxing officer finding  on Item 1  on instructions as the only  work done by the Advocate  was to file an Application dated  19th October 2017,  and as such, a sum of Kshs. 75,000/= would be adequate. That the Respondent/ Applicant has been served with  the Certificate of costs  by the Applicant/ Respondent  dated 13th August  2020,  on 16th September 2020,together with an Application dated  10th September 2020, seeking Judgment against  the Respondent/ Applicant  and the same is set out for hearing on 26th November 2020.

In his Supporting Affidavit, Prof  Kiama  Wangai,  averred that he is the Advocate having conduct of the matter on  behalf of the Respondent. That he is aware that the Respondent disputes the taxing of  item 1.

On the 22nd April 2021, the Court directed that the  said Application  be canvassed by way of written submissions and in compliance with the said  directives, the Respondent/ Applicant through the Law Firm of  Prof. Kiama Wangai & Company Advocates,filed  his written submissions  dated 28th April 2021, and submitted  that the Advocate did not  annex any evidence of detailed research done, complexity of the matter nor demonstrated any difficulty he came across. Further that  the Advocate did not demonstrate  the nature  of the case and the Interests of the parties  that made him entitled  to such a high Instruction fee.  That the Application for  injunctive orders was a straight forward one and  an amount of Kshs. 70,0000/=is adequate instructions fees.

The Applicant/ Respondent  filed its written submissions dated 9th June 2021,  and submitted that the  Respondent/ Applicant did not  comply with the provision of  Rule 11 of the  Advocates (Renumeration) Order as the Ruling  on taxation was delivered on 19th September  2019,  and the Notice of Objection ought to have been filed  within 14 days  after the Ruling and as the same was filed on 8th October 2019,  it was way out of time. The Court was urged to find that it is irregularly on record.

It was further submitted that no one ground has  been availed  to state why the taxation Ruling  ought to be set aside. That the averment are misleading as an Application cannot be filed in isolation without other requisite pleadings, where the Plaintiff sought for substantive final orders. That research was substantively done and the Deputy Registrar exercised her discretion in allowing the instruction fees  as taxed.

The Court has carefully read and considered the  Notice of Motion Application, the Affidavits, the  annextures thereto, the written submissions and provisions of law and finds that the  issue for determination is whether the Respondent/ Applicant is entitled to the orders sought.

The Respondent/ Applicant has sought for the setting aside of the taxation of Bill of Costs by the Applicant/ Respondent. The Applicant/ Respondent has contended  that  the  Notice of Objection filed by the Respondent/ Applicant was filed way above the required 14 days after  the   Ruling was delivered. Rule 11  of the Remuneration order  provides that;

(1) Should any party that objects to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.

(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.

The Court has carefully gone through the  Ruling delivered by the Taxing Master.  It is clear that in the said  Ruling, the Taxing Master provided the reasons for her decision and therefore in  any case there would not have been any  use for the  Notice of Objection. See the case of  Samwel Chelule Koech ….Vs… Kenya Forest Service [2021] eKLR where the Court  held that

“ 16.   I note from a copy of the ruling dated the 15th July 2020, that the Taxing Master gave reasons for his decision on the items as taxed and therefore in agreement with the Applicant herein, I do not see the need for seeking further reasons or giving notice in writing to the taxing officer for the said decisions. In my view the omission to file a notice of objection was therefore not fatal, as in any case the ruling containing the reasons was availed.”

Therefore, it is the Court’s considered view that Rule 11 (1) would not have been necessary in the circumstances. Having being given the  reasons, then Rule 11(2)  that requires the Objector to apply to the High Court  within 14 days comes into place. The Ruling was delivered on 19th September 2019, and the Respondent/ Applicant had fourteen dayswithin which to file to the High Court and or even raise the  Notice of Objection. This was not done. The Notice of Objection was  filed on  8th October  2019,way past the 14 days and that an Application to the High Court was done on17th September 2020, over a year since the Ruling was done. If the  Respondent/Applicant is to rely on the  Notice of Objection,  seeking to find reasons for the said Taxation from the Taxing Master, the same was filed  after the required time  of 14 days. The Court does not think the same was necessary, since the reasons had been given. Further, the Application to the Court was also  not done within the  14 days timeline. Whichever way one looks at it, the 14 daystimeline was not adhered to.

Rule 11(3)  requires a party to seek for an extension of time if the 14 days timeline set was not adhered to. The Respondent/ Applicant failed to do the same and even after the same being raised, the Respondent/ Applicant has not sought to give any clarifications. Therefore, the Court concurs with the  Applicant/ Respondent that  the same isfatal for being out of time and therefore null and void.

Consequently the Court finds and holds that as the Notice of Objection and the Application to this Court did not adhere to timelines and therefore, the same are null and void and thus the Application dated17th September 2020, is hereby dismissed with costs to the Applicant/ Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy