Peter Kamau Ikigu v Barclays Bank of Kenya Ltd & Peterson Ogino Ongaro [2017] KEHC 10001 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO 719 OF 2003

PETER KAMAU IKIGU.............................................................PLAINTIFF

VERSUS

BARCLAYS BANK OF KENYA LTD.............................1ST DEFENDANT

PETERSON OGINO ONGARO....................................2ND DEFENDANT

RULING

[1]The application that is the subject of this Ruling is the Chamber Summons application dated 2 September 2016. It was filed herein by the Plaintiff, Peter Kamau Ikigu, pursuant to Paragraph 11(2)and(4) of the Advocates (Remuneration) Order, Sections 1Aand 3A of the Civil Procedure Act, Chapter 21of the Laws of Kenya and all other enabling provisions of the law. The orders sought thereby are:

[a] Spent

[b] That the Court be pleased to enlarge time within which to file a notice of objection with the Taxing Officer on the Bills of Costs filed herein by the Defendants ;

[c] That the Notice of Objection dated 1 September 2016 be deemed duly filed;

[d] That there be a stay of execution of costs awarded herein on 23 February 2016 pending the hearing and determination of the Reference;

[e] That the decision of the Taxing Master given on 23 February 2016 be set  aside forthwith;

[f] That the Court be pleased to order the 1st Defendant's Bill of Costs dated 2 August 2013 and the 2nd Defendant's Bill of Costs dated 1 March 2013 to be taxed afresh;

[g] That the costs of the application be in the cause.

[2]The application was hinged on the grounds that the Taxing Officer erred in awarding costs without taking into account the value of the subject matter; and that she proceeded to undertake the taxation on a mention date without notice to the Plaintiff's Advocate. The taxation was further attached on the ground that the Taxing Master applied the wrong principle of law in allowing the Defendants' Bills of Costs as drawn. For these reasons, it was the contention of the Plaintiff that he has good grounds for challenging the taxation, but was unable to file a Reference within the time stipulated under Paragraph 11 of the Advocates (Remuneration) Order, hence the application for extension of time and stay of execution.

[3]In Supporting Affidavit sworn by the Plaintiff in support of the application, he averred that on 25 August 2016, his  Advocate informed him that a Decree for Costs had been issued in this matter; and that neither him nor his Advocate was aware that taxation had taken place and a Certificate of Costs issued. He further averred that upon perusal of the court file by his Advocate, it became apparent that the case had been mentioned on 23 February 2016 in the absence of his Advocate when the Taxing Master proceeded to allow the Defendants' Bills of Costs as drawn at Kshs. 7,280,748 and Kshs. 7,084,531, respectively; and yet the subject matter, which was the suit premises, was valued at no more than Kshs. 3,500,000. It was further deposed by the Plaintiff that, warrants of attachment and sale having been issued, he stands to suffer irreparably as he pursues his rights in respect of the taxation; and that he could not file the Reference in good time because he was unaware of the Taxation.

[4]The Defendants were opposed to the application and they relied on the Replying Affidavits sworn by Eddy Owiti on behalf of the 1st Defendant and Nelson Havi, Advocate, on behalf of the 2nd Defendant. The parties thereafter filed their respective written submissions which were highlighted on 7 March 2017 and from a careful consideration of the application, the affidavits filed herein as well as the written submissions, it is manifest that most of the facts are not in dispute. Indeed the record confirms that the Plaintiff charged Land Reference No. 2/653 Kilimani, Nairobi (the suit property) to the 1st Defendant to secure a borrowing of Kshs. 3,000,000 by Kanconsult Limited and that upon default by the Plaintiff in servicing the facility, the property was sold by private treaty to the 2nd Defendant for Kshs. 3,500,000. Feeling aggrieved by that conduct, the Plaintiff filed this suit seeking, inter alia, a declaration that the sale and transfer of the suit property to the 2nd Defendant were illegal, null and void.

[5]It is further not disputed that the suit was heard and dismissed on 27 February 2013. The Defendants thereupon filed their respective Bills of Costs for taxation. Although taxation was stayed for some time pending the hearing and determination of certain applications that had been filed by the Plaintiff in the Court of Appeal, the stay orders were subsequently vacated after the Court of Appeal dismissed the Plaintiff's application in that regard on 7 November 2014. The Replying Affidavit that was sworn by Mr. Havi on behalf of the 2nd Defendant sets out in a detailed chronological order, the events pertinent to the taxation. Suffice it to state that ultimately, the matter was placed before Taxing Master, Hon. Elizabeth Tanui, for purposes of taxation. There was no appearance for the Plaintiff. The record shows that the Taxing Master accordingly issued directions thus:

"The affidavit of service shows that the Plaintiff was duly served with today's date. I shall therefore give the following     directions. The 1st Defendant's bill of costs be disposed off by way of written submissions. The Plaintiff to file and serve written submissions within 14 days from today's date for the 1st Defendant to respond thereto within 14 days of service.   Mention on 16/2/2016 to confirm compliance and give a ruling date."

Similar orders were made in respect of the 2nd Defendant, at the instance of Ms. Omolo, Advocate.

[6] It is further not in dispute that the matter was not listed for mention on the 16 February 2016 because the Taxing Master was not sitting. According to the Defendants, a notice was pasted on her door to the effect that the matter would be mentioned on 23 February 2016; and although the record of 23 February 2016 shows that a notice was issued that this matter would be mentioned on 23 February 2016, there is no indication that the Plaintiff's Advocate was served therewith. There is no disputation that the Plaintiff's Counsel was unaware of the taxation that proceeded on 23 February 2016 until about 25 August 2016. Accordingly, sufficient cause has been shown as to why the Plaintiff was unable to comply with the requirements of Paragraph 11 of the Advocates (Remuneration) Order within the stipulated timelines.

[7] The foregoing is sufficient in my view to dispose of the Chamber Summons application without going into matters that would be the proper subjects of the Reference itself. Accordingly, I would allow the Plaintiff's application dated 2 September 2016 and grant orders in the following terms:

[a] That pursuant to Paragraphs 11(1) and (4) of the Advocates (Remuneration) Order, the time within which the Plaintiff should file a notice of objection with the Taxing Officer on the Bills of Costs filed herein by the Defendants is hereby enlarged   by 14 days from the date hereof;

[b] That there be a stay of execution of costs awarded herein on 23 February 2016 pending further orders of the Court in respect of the intended reference.

[c] That costs of the application be in the cause.

The other prayers, being premature and presumptive in my view, are hereby declined.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF SEPTEMBER, 2017

OLGA SEWE

JUDGE