Republic v City Council of Nairobi & Ivyland Park Ltd [2017] KEHC 6116 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  69 OF 2012

IN THE MATTER OF AN APPLICATION BY INDERPAL SINGH, FRANCIS NNEBE AND JAMES KISA ON BEHALF OF CONVENT DRIVE SOUTH RESIDENTS  ASSOCIATION  FOR AN ORDER   OF CERTIORARI

AND

IN THE MATTER OF THE PHYSICAL PLANNING ACT CHAPTER 286 OF THE LAWS OF KENYA

AND

IN THE MATTER  OF  THE CITY  COUNCIL OF NAIROBI AND THE  APPROVAL  OF BUILDING  PLANS  REGISTRATION  NUMBER  FC  410  TO BE  ERECTED  ON LR  NO.  3734/229

BETWEEN

REPUBLIC …………………………………………………..…..APPLICANT

VERSUS

THE CITY COUNCIL OF NAIROBI………………………....RESPONDENT

AND

IVYLAND PARK LTD …………………………...........INTERESTED PARTY

RULING

1. By a chamber  summons dated  10th October  2016  the applicant  seeks from this court  orders:

i. Spent;

ii. That there be  stay of  certificate of taxation  with respect to the  1st and    2nd respondent’s   bills of costs   in this matter  pending hearing   and  determination  of the Reference  on taxation;

iii. That  the court be  pleased to enlarge  the time  within which  the applicant  should  file the reference;

iv. That the  reference  filed herewith   be deemed  to be  duly filed;

v. That costs of the application be in the cause.

2. The application which is  brought  under the  provisions  of  Rule  11(4) and  11(5)  of the Advocates  Remuneration  Order, 2009, Sections  63(c) Sections   89 and  95   of the Civil Procedure  Act, Order   22  Rule   22 of the Civil Procedure Rules, 2010 is  supported by  the affidavit   of Kevin Kangethe  advocate  sworn on  10th October  2016   and  grounds  on the face of   the application.

3. According  to counsel’s  depositions  in support of the  grounds, which also formed the basis of his oral submissions  in court, the 1st and 2nd respondent’s Bill of costs   were on  1st September  2016  taxed  at  727,718 and shs  733,444 respectively, making  a total of  shs  1461162; That the applicants  were aggrieved  by the ruling  and seek to challenge  it on items (1), 64 and (1),(84) of the  1st and  2nd respondents bills of costs  respectively  on the grounds, among  others, that the items as awarded were excessive and inordinately  high  for  an environmental  public law  matter that sought  prerogative  orders to ensure  observance of the zoning  policy; That such  high costs  would have  the net effect  of preventing  ordinary  citizens from accessing the courts seeking  public   law remedies; That the taxing  officer  erroneously  granted getting up  fees whereas  the same does  not arise in Judicial Review matters;  That there is imminent   risk of execution  which  would  render  the intended  reference nugatory and  would cause chaos  as this is a representative suit;  That delay  in filing the Reference   was occasioned by the fact that  this is a  representative  suit and  it took time  for deliberations to be made by members; That the applicants  are willing to offer reasonable  security  in  terms directed  by the court.

4. The chamber summons  was opposed by   the interested party  Ivyland  Park  Ltd through a replying  affidavit  sworn by Dr Zhang  Yu Ling  the Managing Director of the company  sworn on 23rd November  2016   and  contending that  the application is  a non starter  as it raised  no arguable  issue; That there is no error  in principle  in regard to the quantum  of taxed costs  and  that no exceptional issue had been shown  to warrant  intervention of the Superior Court;  That no adequate reasons have been demonstrated as the reasons were already contained in the ruling hence, a Reference should have been filed and client’s instructions sought later; That the taxing officer  properly  exercised  her discretion;  That the  applicant  had been  granted  stay  of execution for  30  days earlier   and  did nothing  on the ruling  date hence  it should not be given  a second  chance; That stay and  extension  of time will delay realization of the fruits of the interested  party’s judgment; That as the grounds  proposed  in the Reference  are hopeless, it would be in vain   to extend time  for  filing of the  Reference; That litigation must come to an end; That the application is a blatant abuse of the court process and that there is no special circumstances to warrant the orders sought.

5. Parties argued the application orally before me on  13th February  2017  with Mr Karanja counsel for the  applicant  reiterating  the contents of the application, grounds, depositions in the supporting  affidavit and  maintaining that  his clients  are entitled to the orders sought  because the delay in filing the Reference is only 10 days  in that taxation  was done on 1st September 2016  and the Reference  filed on 11th October  2016.  That the matter was of public interest hence costs were excessively awarded against the applicants who are ordinary citizen.

6. In opposition to the chamber summons, Mr Ochieng  Odhiambo counsel for the 2nd respondent/interested party  submitted that  the  principles  for  stay had not been met and that the applicant herein had been given 30 days   stay  within which  they should have  filed a reference   which time they squandered; That the Taxing  Master’s  ruling had  reasons for  taxation hence it  was  easy for the  applicants  to file a  reference  within the shortest  time  but waited until the 40th day  to file one  and  seek extension of time; That one official of the Association (applicants) should have sworn an affidavit to indicate what difficulties they had and in the absence of that affidavit, there is no evidence that consultations were going on; That no security costs are offered.

7. It was contended that there is no good reason for stay and or enlargement of time; that the courts should not deny advocates remuneration for the work done hence the application should be dismissed.

8. In a brief rejoinder, Mr Karanja   submitted that they have given reasons for the delayed filing of the Reference as the Association is not a company and that 30 days elapsed before getting instructions.  Further, that it is in the interest of justice that costs are awarded but to the bare minimum particularly in public interest litigation and that given 7 days, a reference would be filed.  On security for costs it was submitted that this is not an appeal but nonetheless, the applicants would be willing to pay what the court will determine.

DETERMINATION

9. I have carefully considered the application by the applicant dated 10th October 2016, grounds and supporting affidavit and also the replying affidavit by the 2nd respondent/ interested party.  I have also considered the parties’ advocates’ oral submissions and the relevant statutory provisions.  No case law was relied on.

10.  In my view, the main issue for determination is whether the applicant is entitled to the orders sought.

11. The procedure for challenging a taxing officer’s ruling or decision on taxation is provided for in Paragraph 11 of the Advocates Remuneration Order which stipulates:

1)Should any party  object to the  decisions 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 those items and the objector may  within  14 days  from the receipt of the reasons apply to a judge  by chamber summons, which shall  be served  on all 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 subparagraph  (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 for  sub paragraph (1)  or sub paragraph (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 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.

12. In the instant case, on 1st September 2016 the taxing officer Mrs E.W. Mburu Deputy Registrar delivered a ruling on taxation and reasons thereof.  She also granted a stay of execution for 30 days upon a request by Mr Ngethe, for purposes of  filing a Reference   and Mr Ogola counsel for the respondent had no objection to that stay.

13. From 1st September 2016, nothing happened until 10th October   2016 when the application by way of chamber summons seeking to stay and for enlargement of time was filed.  No certificate of taxation was issued or extracted pursuant to the ruling.

14.  In the application,  the prayer for enlargement  of time   to file the Reference out of time does  not mention whether  or not  there  was  any objection  filed as  regards  the specific   items that the applicant  wishes to  challenge.

15. Under paragraph  11(1) of the Advocates Remuneration Order, a  party objecting  to the decision  of the taxing officer  may within 14 days after the decision  give notice    in writing  to the taxing officer  of the items  of taxation to which he objects.

16.  In the instant case, albeit the applicant’s oral application for stay stated that the 30 days stay was for purposes of filing a Reference, no notice in writing objecting to the items of taxation was given to the taxing officer.  Albeit the ruling contained all the reasons for taxation and therefore paragraph 11(2) would be superfluous in the circumstances  as there would  be no need for asking  for reasons  for taxation by the person  objecting to  the taxation, but paragraph 11(1) as  read with (4) clearly  shows  that the High Court has power to  enlarge  time fixed for filing  of objection to the  specific  items  or (2)  for   filing  of the reference  itself.

17. In other words, before one can file a reference, they must have filed a notice objecting to specific items within 14 days of the date of the ruling on taxation.  And where such time has lapsed, then an application for enlargement can be lodged to the High Court (judge).

18. In  this case, it is clear that the time for filing  notice of objection  lapsed  and therefore  before  considering  whether  or not to grant more time for filing a reference under sub paragraph  2, the court must be satisfied  that  notice of objection  to taxation, specifying the items   being  objected  to was filed with the Taxing Officer.

19. No leave to enlarge the time for filing   notice of objection has been sought.  It follows that even if  the court  was to enlarge  time for filing a reference, that reference will be incompetent  and  amenable  for striking out  since no leave   has been sought and  or obtained  to enlarge time  under sub paragraph (1) of the Rule  11 of the Advocates  Remuneration  Order.

20. Therefore in the instant case, I find that the application for  enlargement  of time to file  a reference  is  ill conceived  as such enlargement , where there  was no notice of objection to the particular taxed items  or where there  is no prayer  for enlargement  of  time to file  notice of objection to the  specific  items  as taxed  will be redundant.

21. It is for the above reasons that I find this application fatally incompetent and amenable for striking out.

22. Furthermore,  albeit the  taxing officer granted  stay of execution for  30  days,  that stay  did not  stay the processes for  filing of  the reference, as stipulated  in paragraph  11 of  the Advocates   Remuneration Order. The stay would have enabled the applicant to file notice of objection to the taxation within 14 days of the date of ruling, as the reasons   for the taxation were already in the ruling to file a   Reference after such notice of objection.

23. The court  notes that  it is in this  application for  enlargement  of time  to file  a reference   that the applicant  is specifying  items  1 and  64  and  1 and  84   of the respective  respondent’s taxed bills  of costs.  Regrettably, it is not before the judge that the notice of objection is to be filed, but before the taxing officer who taxed the bills.

24. Accordingly, I find that it would be a waste of judicial time  and resources to delve  into  the delay  or reasons  thereof in filing of the Reference  as the application  herein  is incompetent  and  I  must proceed to dismiss it but I order that each  party  shall  bear  their  own costs  of the application.

Dated, signed and delivered at Nairobi this 23rd day of March 2017.

R.E. ABURILI

JUDGE

N/A for the Applicant

N/A for the Respondent

CA: George