Olando Udoto & Okello Advocates v John Chomba t/a Range Merchants [2016] KEHC 4609 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPL. NO.  156  OF 2014

OLANDO UDOTO & OKELLO ADVOCATES...................................APPLICANT

VERSUS

JOHN CHOMBA T/A RANGE MERCHANTS...............................RESPONDENT

RULING

1. By an application dated 2nd February 2016 and filed in court on the same day, the respondent/applicant John Chomba T/A Range Merchants seeks from this court orders:

a. Spent

b. Spent

c. That the court  be pleased to enlarge  time  within which  the respondent/applicant  may lodge  an objection to the decision  of 12th December  2015  by the learned   taxing officer.

d. That the decision of the learned taxing officer of 12th November  2015  be set aside  and  the bill  of costs   dated 29th January  2014  be  taxed  afresh and

e. Costs

2. The application is brought under the provisions of Rule 11(1) of the Advocates (Remuneration Order) and all other enabling powers and provisions of the law.

3. The application is predicated on the grounds that:

a. The ruling on taxation was delivered on 12th November 2015.

b.Despite having instructions to do (sic) so, the respondent/applicant’s former advocates did not file an objection in time.

c. The learned taxing officer erred in law and principle in determining the costs payable.

d. The client has already paid the fees agreed.

4. The application  is further supported  by an affidavit  sworn by John Wanjohi Chomba  sworn on 2nd February  2016, who deposes  that he appointed  the firm of  M.K. Chebii & Company advocates  to act for him in the matter but   that the said advocates  failed to  appear in court for hearing of the  bill of costs  on 29th October  2015.  The said advocates thereafter failed to appear in court for the delivery of the ruling on     12th November 2015. That thereafter, the said advocates informed the respondent/applicant that the ruling had been delivered and advised him that he could challenge the decision.  That the applicant  was aware  and the applicant  herein executed  a supporting  affidavit for the same  but that  his former  advocate  did not  file it in  court as shown by annexture  JWC 1 draft  application and draft  supporting  affidavit;  that it   was not the applicant’s  fault that the reference/objection  was not filed challenging  the decisions  of the taxing officer; that  he has an  arguable  reference  for reasons that:

a. The taxing officer relied on a 2009 Advocate  Remuneration Order  for a matter  filed  in 2001;

b. The taxing officer ignored the issue   that retainer for the instructions claimed was not given.

c. The taxing officer made a determination on the value of the subject matter without any supporting documents being placed before him.

d. The taxing officer made determinations on items which had not been particularized.

5. The Chamber Summons is opposed by the applicant/respondent/advocate who swore a replying affidavit  on 5th February  2016  by Hector Odallo  Okello advocate  who deposes that  the application is bad in law, lacks merit, frivolous, vexatious  and brought  in bad faith  and to deny his  firm the requisite  legal fees; that  no justifiable  reasons  had been advanced for the granting  of the orders sought, that the applicant  seems not to understand  what he  is seeking from this court; that the reasons  for the delay are not  sufficiently stated; the decision  sought to be challenged  is not  annexed; the application should  have merit  or probability  of success; that the  application should be  for review to a judge for consideration  and attention and not an  objection.

6. The parties’ advocates agreed and filed written submissions to dispose of the chamber summons.  In his  written  submissions  dated  15th February  2016  and filed in court  on 16th February 2016, the applicant  who is the respondent   in the main cause submitted, reiterating  the grounds  on the face of  the  application dated  2nd February  2016  and the supporting affidavit  thereof; while  maintaining  that it  was his  advocate  who failed to file the objection  as intended, against  the taxation by the taxing officer.

7. The applicant  also set  out the  grounds upon   which he  intends  to object to the taxation  which are, principally, that the taxing officer  erred  in law in applying  Schedule  V1  of the Advocates  Remuneration Amendment Order, 2009 instead  of applying the 1997 Order since  the  bill as taxed  related to a suit filed in 2001.  The applicant also denied  in toto  each of the items of  the bill challenging  the same.

8. The applicant submits that  having  been called upon by his former   advocates  to swear an   affidavit  in support of  an application  to challenge the taxed bill  of costs, it  was the  failure of his said former  advocates  to file the  application in  time and that the  delay is not  inordinate  hence the  court should  not allow  the  respondent  to unfairly enrich himself  in view  of the meritorious  intended  challenge  to the amount  taxed.

9. In the  opposing  submissions dated  9th February 2016  and filed on the  same day, the respondent contends  that the application is bad in law, lacks  merit, is frivolous, vexatious  and brought  in bad faith  since there   was no decision  made on  12th December  2015  by  the taxing officer  but that  there  was one of  12th November   2015.  That there  is no sufficient  time given for  failure to  file objections to the taxation within 14 days  from 12th November 2015; that the draft  objection should  have been attached to this application hence there  are no   triable  issues  upon which this  court can base the  exercise  of its discretion  to grant the  prayers sought in the  application; and  thirdly, that the delay  in concluding this matter  prejudices  the respondent as  the applicant intends  to drag this suit by  filing numerous  applications.  Finally, that  in view of  the above, should the  court find  it fit to grant  the application, then  the same should be with conditions   the major one  being  that he deposits  the said  amount of  kshs  254,143 in court within  seven(7) days of the  order, failure of which  the same to lapse.  He prayed for dismissal of the application with costs.

10. I have  carefully considered  the application  dated 2nd February  2016, the supporting   affidavit, replying   affidavit and the  parties  written submissions and authorities  relied on by the applicant’s counsel.

11. The law  applicable   and providing for  enlargement  of time within  which to  file an objection  out of time is  Rule 11(4)  of the Advocates  Remuneration  Order  which  provides that:

“ The  High Court shall have  power  in its  discretion by order to  enlarge   time fixed  by  subparagraph (1)  or subparagraph (2)  for 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  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.”

12. The above  provision clearly  provides  that this court has unfettered  discretion  to enlarge  time for any  party to do  what is  required  under the provisions   of Paragraph  11 of the Advocates (Remuneration)  Order.  That discretion, nonetheless, must be exercised judiciously.

13. In this  case, it is not  in  dispute  that taxation of advocate/client  bill of costs  was done  on 12th November  2015  and a Certificate of Taxation  issued by the Taxing Officer/Deputy Registrar on 17th  December 2015  for kshs  254,143. On 7th January 2016, the  advocate  filed Notice of Motion  dated  5th January  2016  seeking for  entry of judgment  on the taxed  costs.

14. As at the time the above application came up for hearing interpartes on 21st January 2016,   no objection to the taxation had been filed.  The application  was  then argued  interpartes before me  and a ruling date  reserved  for 24th February 2016  when the respondent filed this  application seeking  for stay of the ruling on judgment  for taxed costs as  espoused.  In Section 51 Rule (2) of the Advocates Act, and seeking leave to file objection to taxation out of time.

15. No doubt, there  was delay  in filing this application which was  only lodged  after the application for judgment  for  taxed  costs had   been canvassed  and reserved  for ruling, following the serious opposition  to the entry  of judgment  and giving reasons  that the respondent/applicant had instructed  his former  advocates to file objection to the taxed bill of costs  and even signed  an  affidavit  for purposes of filing  such objection but that  the  same  had not been  filed.

16. There being  inordinate  delay  in filing the objection as stipulated under paragraph  11 of the Advocates  Remuneration Order, the only issue is whether  the delay has been explained to the satisfaction of the court and  that notwithstanding  the delay, justice  can still be  served to the parties  without  occasioning them  irreparable  prejudice.

17. In Leo Sila Mutiso V Rose Hellen Wangari Mwangi CA Nairobi 255 of 1997 (unreported), the Court of Appeal stated that:

“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.  It is also well  settled  that in general the matters which  the court  takes into account in deciding  whether  to grant  an extension  of time  are:

First, the length of the delay’ secondly, the reason for the delay, thirdly (possibly), the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted.”

18. I have already found that the delay is from 12th November 2015 upto 2nd February 2016, about three months from the date of taxation.  On the reasons  for delay, the applicant/respondent contends  that he had  instructed  his former  advocates  on record  to file objection to the Certificate of Taxation quite in time   and even  executed a supporting  affidavit  to the contemplated  application which  was  also drafted  as annexed  to his affidavit  hereto, but  only learnt  that the  same had  not been filed on time. In other words, The  applicant was disappointed  by his  then advocates on record  who delayed filing  an already  drafted  application following  his express  instructions to them to file it  in time.  This court has not been given any reasons why the applicant’s former advocate’s feet grew cold after the taxation.  That matter  is left to speculation since they  have not sworn any  affidavit  explaining  the reasons for their failure  to file  the objection  in time  as instructed  by the  applicant.

19. Albeit  not every mistake  made by  an advocate   that would  lead  to a client suffering  would be  excused, the Court of Appeal has set  standards  that this court  has also adopted  in several  of its  decisions  in such instances.  For  example, in Wanendeya  V Gaboi  & Another  [2002] 2 EA 662  cited with  approval  in CA 70/2004  ( Warsame,  M’ Inoti and Murgor JJA) where  the Court of Appeal in  reinstating  an application  that had earlier  been  dismissed  for non attendance  by  an advocate  for a party, the  court stated  that disputes  ought  to be determined on merits  and  that lapses  ought not to  necessarily  debar a litigant  from pursuing his rights.

20. In Katsuri Ltd V Nyeri Wholesalers, CA (APP) No. 248 of  2012 at Nyeri,  a dismissed  appeal  was restored by the Court of Appeal where the mistake  involved  having been  the omission  of counsel  to enter  the date  of the hearing in his diary.

21. In Phillip Chemwolo & Another  V Augustine Kubende [1982-88] KAR  103 page  1040, the  Court of Appeal- Apaloo JA stated as  follows regarding  blunders  and mistakes  of advocates such as  those  involved  in this case:

“ Blunders  will continue to be made from time to time  and it  does not  follow that  because  a mistake has been  made that   a party should  suffer  the penalty of not  having  his case  heard on merit.

I think the broad equity approach  to this matter is  that unless there  is fraud  or intention  to overreach, there is no  error  or default that cannot be put  right by payment  of costs.  The court as is often said exists for the purpose of deciding the rights of parties and not the purposes of imposing discipline.”

22. In yet another  Court of Appeal decision of Belinda  Murai & 9 Others  V Amos  Wainaina CA Nairobi 9/1978  regarding mistake  by counsel , the Court of Appeal pronounced itself thus:

“A mistake is a mistake, it is no less a mistake because it is unfortunate slip.  It is no less pardonable because it is committed by Senior Counsel.  Though in the case of junior Counsel the court may feel compassionate more readily.  A blunder on a point of law can be a mistake.  The door of justice is not closed   because a mistake has been made by a lawyer of experience who ought to have known better.  The court  may not  condone  it but it  ought  to certainly  to do whatever  is necessary  to rectify  it if the interests  of justice  so dictate.  It is known that courts of  justice  themselves  make mistakes which is politely referred  to as erring  in their  interpretation  of laws   and adoption of a legal  point of  view  which Courts  of Appeal sometimes overrule.”

23. The above  decisions, though  pronounced long before  the effective  date of  the new constitutional dispensation in 2010, the principles  established  do  resonate  very well with the  letter and  spirit of the Constitution of Kenya  2010  which commands us to  administer  justice without  undue   regard  to procedural  technicalities, whereas Statutory provisions of section 1A and 1B of the Civil Procedure  Act obliges the courts to exercise their authority  in the application of the Rules  and law in a just, expeditious, proportionate  and affordable  manner  of resolving  disputes.

24. In the instant case, there is no indication that the applicant herein is trying or has tried to undermine or delay the just and expeditious determination of this matter.  This is so because  his new  advocates  even went  ahead  and filed replying affidavit to oppose the application  for judgment  on taxed  costs  and  argued the application  in court on the first  appearance  in court.  I do not therefore find any evidence of the applicant being guilty of overreaching or dilatory conduct in this matter.  It is  not unusual that indeed  delay in  litigation is more often than not caused by the procedural requirements  under the same  law  that commands  courts and  the parties  to disputes to administer justice and or to prosecute cases without  undue  delay.  However, in this case, apart from the recalled  ruling in respect of  the application for  judgment  on  taxed costs, there  has been  no other  thing on record  to suggest that the  applicant has procrastinated  the expeditious  and just  determination of this advocate/client  costs  matter.

25. I therefore  on the above  reasons find that  despite the delay which  has been satisfactorily explained, justice can still be  served by  enlarging time  for the  applicant to challenge  the already  taxed costs.  I am equally satisfied  that the failure  to file objection  to taxation  in time is  excusable  and an order of  enlargement  will accord  both parties  an equal  opportunity  to properly  have their  day in court, for  a court of law strives  to do justice  and denying    a party a chance to be heard  on merit  to ventilate  his grievances   fully  is a last  resort  measure.  Though  the allowing of this application  will  no doubt  inconvenience  the advocate/respondent, the  inconvenience  is capable of being  adequately compensated  by an award  of costs  since he takes  no blame  for the delay.

26. On the chances of the  application for  objection succeeding, the applicant   has gone  to great  detail  to give   the  grounds why  he believes  his  intended  objection has merits.  However,  at this stage, this court  shall not delve into the merits  of the  intended objections  save to state  that in the face thereof  as stated   in the grounds and submissions, the  intended  objection is  arguable  and not frivolous.  This is not to say that it must succeed. To delve into the details will no doubt   prejudice the outcome thereof.

27. As earlier stated, this court does not see any serious prejudice that might be occasioned to the advocate/ respondent if the application is granted.  No such prejudice  has been demonstrated  by the  advocate  and the delay  which has no doubt  inconvenienced  him in that  his judgment  has been  recalled, can be  adequately compensated  by an award  of thrown away costs.

28. Accordingly, I allow the Chamber Summons application dated 2nd February 2016 and order that:

1. The  proceedings  in respect of  the Notice of Motion  dated  5th January 2016  be and  are hereby stayed

2. The period  within which  objection to the decision of the Taxing Officer  made on 12th November  2015  ought  to have been filed be and is  hereby enlarged . The applicant to file and serve such objection within 14 days from the date hereof.

3. The applicant/client  to pay to the  respondent/advocate thrown away costs  of kshs  20,000/- within the  next 14 days  from the date hereof  and in default summary execution for their recovery to issue.

4. Prayer No. 4 of the application is declined and deferred as it forms the substratum of the intended actual objection proceedings.

Orders accordingly.

Dated, signed and delivered in open court this 20th day of April 2016.

R.E. ABURILI

JUDGE

In the presence of

Mr Okello Advocate for the Respondent

Carolyne Ndegwa (pupil) from Andabwa &co Advocates in court on behalf of the Applicant

Henry: Court Assistant