Republic v Ann Njeri Waihumbu, Susan Nduta Ndungu, Martin Gacheru, Daniel Abea Susan Nduta Kimani & Attorney General Ex-Parte Joseph Ndemi Wanjiri, Luka Githinji Ndegwa, Godfrey Chege Muigai & Jackson Musyoka Juma (Being the officials of Kawangware Market Development Society) [2017] KEHC 894 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  182 OF 2016

IN THE MATTER OF THE  SOCIETIES ACT CAP  108  LAWS OF KENYA

AND

IN THE MATTER OF ORDER 53   OF THE CIVIL PROCEDURE RULES, 2010

AND

IN THE MATTER OF THE LAW REFORM ACT, CAP 26, LAWS OF KENYA

AND

IN THE MATTER OF APPLICATION  BY WAY OF JUDICIAL REVIEW  PROCEEDINGS  FOR ORDERS  OF MANDAMUS, PROHIBITION  AND  CERTIORARI AGAINST THE REGISTRAR  OF SOCIETIES  APPOINTED  UNDER CAP  108, LAWS  OF KENYA

AND

BETWEEN

REPUBLIC......................................................................................APPLICANT

VERSUS

ANN NJERI WAIHUMBU..………..….……………..1ST INTERESTED PARTY

SUSAN NDUTA NDUNGU …....…………………...2ND  INTERESTED PARTY

MARTIN GACHERU……….…....…………………..3RD INTERESTED PARTY

DANIEL ABEA……………...……..…………………4TH INTERESTED PARTY

SUSAN NDUTA KIMANI…….…......………………...5TH INTERESTED PARTY

THE HON. ATTORNEY GENERAL….........….……...6TH INTERESTED PARTY

EX-PARTE/APPLICANTS

JOSEPH NDEMI WANJIRI   …………..……...1ST EX-PARTE  APPLICANT

LUKA GITHINJI NDEGWA..……….....………….2ND EX-PARTE APPLICANT

GODFREY CHEGE MUIGAI……...…....………...3RD EX-PARTE APPLICANT

JACKSON MUSYOKA JUMA………......……….4TH EX-PARTE APPLICANT

(BEING  THE OFFICIALS  OF KAWANGWARE

MARKET DEVELOPMENT SOCIETY)

RULING

1. On 10th July  2017, Honourable  S. Mwayuli  Deputy Registrar delivered  a ruling  and  reasons for  taxation  in a bill of costs  dated 6th March 2017  filed by  the   firm of  Julius  Nyakiangana  & Company  Advocates  for the  1st-5th  interested parties.

2. In the said ruling, the Honourable Deputy Registrar/ taxing officer   taxed the bill of costs  which had  been drawn  at  kshs  558,005 thereby  to kshs  258,005 taxing off  kshs  300,000/-.

3. The record shows that  the  respondent/applicant  did not  appear for  the taxation  despite  its advocates  being served  with notice of taxation. The applicants herein who were  respondents/exparte  applicants  in the main  motion  were  represented  by the firm of  P.W Macharia  Associates  Advocates.

4. After the certificate of taxation was issued, the interested  parties’ advocates  filed  notice of  motion dated  1st September  2017 seeking for  judgment  on the certificate  of  taxed costs   as stipulated in Section 5(2) of the Advocates Act. That application is still pending hearing and determination. The certificate  of taxation is dated  15th  August , 2017.

5. As soon as the exparte applicants were served with the   application  for judgment, they  filed an  application dared  23rd  October  2017  under certificate of urgency seeking for  stay of  execution  of the certificate of taxation dated 15th August 2017.

6. However, on my perusal of that application, I declined  to certify  it as urgent  because the purpose  of stay was not disclosed.

7. Subsequently, the exparte  applicants  filed a notice of change of  advocates  on 3rd November  and  a  notice of withdrawal  of the application dated  23rd October   2017 before effecting  service  on the interested parties which notice  was endorsed by the court this morning effectively withdrawing that application. The applicants then filed a fresh application dated 13th November  2017 seeking to set aside the certificate of taxation dated  15th August  2017 and the order issued on 10th July  2017 taxing the interested  parties’ bill of costs to shs  258,005.

8. The applicants also seek for an order  compelling  the  interested parties to tax their bill of costs in accordance with rules of procedure and natural justice by involving the exparte applicants by way of interparties taxation of the bill of costs.  They  further  seek for stay of execution of the certificate of taxation dated  15th August 2017 and or the hearing of the interested parties’ notice of motion dated 1st  September  2017 pending the hearing and  determination of this application; and costs.

9. The application is based on the grounds on the face of the  notice of motion and supported by the affidavit sworn by Joseph  Ndemi Wanjiru on 13th November 2017 deposing, among  others that the taxation was done exparte because he had disagreed  with his  advocate  P.W Macharia  who did not  attend court  for the taxation and that neither  did the  said advocates  notify him of the taxation  date. That he  was  served with the certificate of taxation directly  on 24th August 2017 but had no money to consult another advocate.

110. On  12th October  2017 the applicant learned from the perusal of the court file that there was an application seeking  judgment in terms of  the impugned certificate  of  taxation, which was  set for hearing  on 30th October   2017.

11. That unless the orders  herein  are granted, the applicants will be  unfairly forced to pay shs  258,005/- without  due process  being followed to their  detriment.

12. The application  was opposed by  the interested parties who filed  a replying  affidavit on  17th November  2017  sworn by  Mr Julius  Nyakiangana advocate deposing among others that the application is an abuse of court process, is premature for non-compliance with the Advocates Remuneration Order and  in view  of the pending application  dated 23rd  October  2017.

13. That the applicants were served  with the bill of  costs on 10th March  2017 which  was set down for  5th April  2017, again served  on  the applicant’s advocates  on  29th March  2017 as  shown by the affidavit of service annexed.

14. That on 5thApril 2017 there was no appearance by the applicants and the court  was on leave  hence the matter  was slated  for mention on  6th June  2017 to fix  a ruling  date  which mention  notice  was  served on the advocates for the applicants  on 11th April  2017 as shown by annexed  affidavit of service.

15. That on  6th June  2017 a ruling date  was given  for 10th July  2017 at 2. 30 p.m. and a ruling date was served on the applicant’s  counsels   on 12th June  2017  as shown by  annexed  affidavit of service.

16. That on 10th July  2017 when the ruling was delivered there  was  still no appearance by the applicants.  That the  interested parties’  advocate further served  the  certificate of costs on the  exparte  applicants personally on 24th August 2017  as shown by annexed affidavit of service and  that the advocates for the applicants  had even requested to settle the costs as taxed by installments as shown by letter annexture JN-5 from L.N. Macharia & Company Advocates dated 3rd November  2017.

17. The application was argued this morning  by Mr  Jakech counsel   for the applicants  with Mr Nyakiangana  advocate  representing  the  interested parties.

18. The applicant’s  counsel reiterated the  grounds and  supporting  affidavit of  his client while maintaining that since his clients did not participate in the taxation, they should be accorded an opportunity to have the taxation done interparties  as the taxation  proceeded when they had disagreed with the advocates PW Macharia who did not notify  their clients  of the date of taxation.

19. Further, that the bill as taxed is too high and if executed, the clients will suffer.

20. In opposition, Mr Nyakiangana, relying on his sworn replying  affidavit  submitted that the  application was  an abuse of court process because there  is an acknowledgment  that there  was  an  advocate on record  for the applicants who was duly served  to appear for taxation and that the applicants were also served with certificate of taxation personally. In addition, it was contended  by Mr  Nyakiangana that the issue  of the applicants  disagreeing  with their advocates on record  is immaterial  since they were served and no other advocate was on record  for them at that time hence there was no confusion on legal  representation.

21. Further, that the applicants could only challenge the taxation   through the procedure set out  in paragraph  11 of the Advocates  Remuneration Order by filing a notice of objection to the taxation  and if they did not  know of the taxation, they could seek for enlargement of time to file objections and file a reference for the  court’s consideration, not asking this court to stay and  set aside  the taxation as is the case here.  Counsel urged this court to dismiss the application with costs but that the advocate  for the applicant should personally pay those costs for   misadvising  their clients  in this matter.

22. In a rejoinder, Mr Jakech counsel for the applicants submitted that although it is admitted that his clients and their former  advocates were served with certificate of taxation and  bill of costs, the two had  disagreed and that in any case, Section 95  of the Civil Procedure Act  allows this court  to stay certificate  of taxation whereas Section  85  of the Act  allows  the application  of the Civil Procedure Act  to Miscellaneous Applications  as this one.

23. It  was  submitted that the  procedure  for filing of  a reference  assumes that  there  is only  a certificate  of taxation yet in this case, there was and is already, an application for judgment.  Reliance was placed  on Miscellaneous Application  83/15  at Machakos (not supplied to court) where the court (Muriithi)  held that a stay of execution of the bill of costs  can issue  by the court.

24. Counsel for the applicant submitted that although the circumstances  in this case and  the High Court   Miscellaneous Application 83/2015 are different, the principles were the same.

25. In a rejoinder to the authority cited, Mr Nyakiangana replied that the Miscellaneous 83/2015 was in his client’s  favour and that  in the matter, there was a pending reference where the applicants were seeking enlargement  of time to file a  reference out of time  unlike  in this case.

26. Further, that the court in the  said case  dismissed the application for  non compliance  with the  established  procedure  for  filing  of references under paragraph 11 of the Advocates Remuneration Order.

27. It  was contended  that as there is no judgment  entered  in terms  of the issued certificate of  taxation, there is no risk of  execution of the  certificate of taxation.

DETERMINATION

28. I have carefully  considered  the exparte applicant’s  notice of  motion  dated 13th November  2017, the  grounds  in support, the supporting  affidavit and annextures.  I have also considered  the  replying affidavit filed by counsel  for the interested  parties  and  the respective  counsel’s submissions and  case law relied on this morning.

29. The only  issue for determination  is whether the application by the applicant  has any merit  or at all.

30. It is worth noting  that the established  procedure for challenging   taxation of bills of costs is set out in paragraph 11 of the  Advocates Remuneration  Order and  provides that:

1) Should any party object to the decision of the taxing officer, he may within 14 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 these items and  the objector may within fourteen days from the receipt of the  reasons apply to a judge in chambers 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 Sub paragraph  (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 enlarge the time fixed by Sub paragraph (1) or Sub paragraph (2) of 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, an  may be so made notwithstanding that the time sought to be  enlarged  may have  already  expired.”

31. In Machira &Company Advocates vs  Arthur K. Magugu  & Another CA 199/2002 [2012] e KLRthe Court of Appeal  made it clear that Rule 11 of the Advocates Remuneration  Order provides for ventilation of grievances from such decisions of the taxing officer through a  reference  and that such  decisions cannot be challenged by way of review, appeal or even setting  aside.

32. In this case, it is  not in dispute that  the bill of  costs  was taxed  after the  advocates for  the applicants had been served  severally but had not  appeared.

33. The applicants claim that they had disagreed with their then  advocate on record,  PW Macharia who never notified  them of the date of taxation until when they were served with the certificate of taxation and  learnt of the  application for judgment on perusal  of the court file.

34. That  may be so.  However, there is no way the court(taxing officer)could have known that the applicants and their advocates had fallen out.  She had to undertake her judicial duties without inquiring  to establish the reasons  for the non attendance  of the applicant’s counsel as long as she was satisfied that the advocates  for the adverse parties  were served  with notice for, and that is  what is expected  of any court, including  this court.

35. Where the applicants realize that they were excluded from participating in the taxation and a certificate of taxation has been drawn and sealed, with an application for judgment  already on record, I agree that they can apply for stay of further proceedings including  entry  of   judgment.

36. However, that stay  must  be  a stay pending some other action.  In these cases of taxation, the stay can only be sought and  granted on  account that there  is a pending  application seeking for enlargement of time under Paragraph 11 Rule (4) of the Advocates Remuneration Order to file an objection to the taxation  and  or an intended  Reference.

37. There is no demonstration of an intention to file such  application  which should have been  filed instead  of the application  seeking  to set aside  the  taxation and  certificate of taxation.  Courts,  over time  have held that:

“ Taxation  of costs whether  those costs  be between party and   party or between  advocate  and  client, is a special  jurisdiction  reserved to the taxing officer  by  the Advocates  Remuneration  Order.

The court  will not be  drawn  into the arena of taxation except  by way of a reference from a decision on taxation except  by way of a reference  from a decision  on  taxation made under  Rule  11  of the Advocates  Remuneration Order.”

38. And as was held in Donhold  Rahisi  Stores  case Nairobi  HCC 18/2004.  The present application is not such reference.  The court would only be inclined  to stay recovery of the taxed  costs  pending the determination of a reference stipulated under  Paragraph 11 of the Advocates Remuneration Order, and  not pending  the setting  aside  of the  certificate of  taxation and  the order of taxation.

39. The applicant’s counsel now on record had the opportunity, on being instructed to take over the conduct of the matter from PW Macharia Advocates, to study the file and the applicable law and procedure for challenging taxation proceedings, whether the taxation was conducted  exparte or  interpartes.

40. The law allows  the filing of  a reference exparte or interpartes  that is why  there is provision for  notice of objection to taxation  of specific items of the taxed bill and where the Ruling for  taxation has reasons for such taxation, the objector need not   seek reasons  for  taxation.  He or she  can proceed, upon giving  notice within 14 days of the decision, proceed  to file a reference  in chambers  for consideration  interpartes.  Where such time has lapsed, then Paragraph 11(4) gives such party wishing to apply latitude to seek enlargement of time.

41. None of the above was done by the applicants through their  advocates.  They cannot cling to Article 159(2) of the Constitution  as  the cure for procedural technicalities because the  matter is not before the court as  a reference challenging  the specific value  items of  the bill of costs  as taxed, for the court’s  discretion  to be  exercised  in accordance  with the  principles  established over time.( see HCC 100/2013 Ufundi Co-operative  Savings and Credit Society Ltd vs Njeri Onyango & Company Advocates .

42. Challenging a taxation is not the same  as challenging an exparte judgment or other order made in a matter where review can be sought. The manner of  challenging the  taxation is stipulated in the Advocates Remuneration Order under the Advocates Act Cap 16 Laws of Kenya. That procedure  cannot be  ignored and  brought into ambit  of Civil  Procedure Act and Rules. In Speaker of the National Assembly vs Karume [2008] 1KLR 425 the Court of Appeal  made it  clear that where there is a clear procedure for the redress of any particular  grievances  prescribed by  the Constitution or the Act  of Parliament, that procedure  should be  strictly  followed.

43. The above decision echoes Pasmore vs Oswald Twistle Urban District Council [1988] A.C 887 where it was held that where an obligation is created by statute, the person seeking the remedy is deprived of any other means of enforcement.

44. The above  decisions  have been  followed  subsequently  by the Court of Appeal  in Samson Chembe Vuko V Nelson  Kilumo  & 2 Others[2016] e KLR and Mutanga Tea Factory Company Ltd  vs Shikara Ltd & another [2015] e KLR  on the need for aggrieved parties to strictly follow any  procedures that are specifically prescribed for resolution of particular  disputes.

45. For the above  reasons, I find that  the  application  dated  13th November  2017  is devoid  of any substance  and is  improperly  before this court.  The same is dismissed.

46. Counsel for the interested parties urged for costs against the advocates for the applicant for misadvising their clients.

47. I would have done so.  However, costs are in the discretion of the court and moreso in proceedings of Judicial Review like these where the interested parties have been awarded costs payable by the applicants.

48. The advocates for the parties ought to know the law but in this case; the court had to intervene by rejecting the initial application, for the applicant’s advocates to file some semblance of an application on behalf of their clients.  In this case, they fumbled and lost.  It is sufficient to tell the advocates to, in future, to read their law and advise their client’s properly.

49. In the premises, I order that each party shall bear their own costs of the application which is hereby dismissed.

Dated, signed and delivered at Nairobi this 21stday of November 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Jakech for exparte applicant

Miss Ogonjo H/B Nyakiangana

CA: George