Republic v Public Procurement Administrative Review Board Ex Parte OJSC Power Machines Limited, Transcentury Limited and Civicon Limited (Acting Jointly as a Consortium/Joint Venture that Submitted Tender No. Kgn-Grd-09-2015); Kenya Electricity Generating Company Limited (Kengen) & Rentco East Africa Limited, Lantech & Toshiba (Interested Parties) [2022] KEHC 2721 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

JR MISC. APPLICATION NO. 284 OF 2015

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

-VERSUS-

PUBLIC PROCUREMENT

ADMINISTRATIVE REVIEW BOARD.................................................RESPONDENT

-AND-

KENYA ELECTRICITY GENERATING

COMPANYLIMITED (KENGEN).......................................1ST INTERESTED PARTY

RENTCO EAST AFRICA LIMITED,

LANTECH & TOSHIBA.......................................................2ND INTERESTED PARTY

-AND-

OJSC POWER MACHINES LIMITED, TRANSCENTURY LIMITED AND

CIVICON LIMITED (ACTING JOINTLY AS A CONSORTIUM/JOINT VENTURE

THAT SUBMITTEDTENDER NO. KGN-GRD-09-2015).....EX PARTE APPLICANT

RULING

1.  On 19th January, 2016, Honourable Mr. Justice G. V Odunga delivered a judgment dismissing the Applicant’s substantive notice of motion application with costs. Thereafter, the 2nd Interested Party filed its Party and Party Bill of Costs dated 29th May, 2018 and on 7th December, 2020, the matter was mentioned before the Honourable Deputy Registrar to confirm filing of submissions and a ruling reserved for 16th February, 2021 by way of e-mail. However, the Applicant alleged that the ruling was delivered without notice to him on 22nd February 2021 whereby the Taxing Officer awarded the 2nd Interested Party costs of the suit in the sum of Kshs. 4,190,375/-. The Applicant contended that they only learnt of the ruling on 7th May, 2021 through a follow-up email inquiring whether the same had been delivered. Subsequently, the Applicant on 14th May, 2021 notified the Taxing Officer of the items being objected to.

2.  Indeed, it was their contention that it was incumbent upon the Honourable Deputy Registrar to notify the Applicant of the deferment of the said Ruling through their respective email addresses and failure to send the ruling notice and the said ruling electronically to the Applicant’s advocate was a mistake which should not be visited upon the Applicant.

3.  As a result, the Applicant moved this court vide a Chamber Summons application dated 17th June, 2021 seeking for ORDERS:

1)THATthe time fixed under the Advocates (Remuneration) Order, 2014 for filing of the Reference herein be and is hereby enlarged and this Reference be deemed as having been properly and duly filed

2)THATpending the hearing and determination of the Applicant’s reference, this Honourable Court be pleased to stay execution of the Ruling of Honourable Deputy Registrar C.A Muchoki delivered on 22nd February, 2021 and all other further and/or consequent proceedings and/or orders thereto.

3)THATthe Honourable Court be pleased to review, revise and/or vary the decision of the Honourable Taxing Officer rendered and/or delivered on 22nd February, 2021 and in particular, the decision relating to Items No. 1 and 2.

4)THATthis Honourable Court be pleased to order that the 2nd Interested Party’s Party and Party Bill of Costs dated 29th May, 2018 be taxed afresh by a different Taxing Officer.

5)THATin the alternative to orders (3) and (4) above, this Honourable Court be pleased to re-assess and/or re-tax the costs lawfully payable under the 2nd Interested Party’s Party and Party Bill of Costs dated 29th May, 2018 as pertains to Items No. 1 and 2.

6)THATthis Honourable Court do issue any such other and further orders and/or directions as it may deem fit to issue in the interest of justice.

7)THATthe costs of this Reference be provided for.

4.  The application is founded on the grounds set out on the face therein and on the Supporting Affidavit of Ng’ang’a Njiinusworn on even date.

Response

5.  The 2nd Interested Party opposed the motion through the Replying Affidavit of Robert Nyasimi sworn on 7th September, 2021. The deponent is the Regional Director of Rentco Africa, a member of the Rentco East Africa Limited, Lantech and Toshiba Consortium. He deponed that since the ruling was not delivered as scheduled, it was upon the Applicant to follow up on the matter to inquire from the court the new date set for the ruling and following up three (3) months after the delivery of the ruling without substantial reasons amounts to inordinate delay on the part of the Applicant.

6.  Further, he averred that the Applicant has not demonstrated what steps they took to follow up on the delivery of the ruling when it was not delivered as scheduled. Indeed, it was his averment that failure to lodge a Notice of Objection within fourteen (14) days as required by Rule 11(1) of the Advocates Remuneration Order was due to their own indolence and sheer laxity and in exercising its discretion, the court should not be used to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.

7.  Contrary to the Applicant’s averments, Mr. Nyasimi argued that the Deputy Registrar applied herself to the provisions of Schedule 6 of the Advocates Remuneration (Amendment) Order, 2014 and equally considered the complexity of the matter between the parties.  It was also averred that the Taxing Master has discretion to increase the instruction fees taking into account a number of factors such as the amount or value of the subject matter. Accordingly, he urged that the application be dismissed with costs.

Submissions

8.  The Applicant filed written submissions dated 8th November, 2021 in support of the motion. Counsel submitted that the provisions of Rule 11 of the Advocates Remuneration Order grant this court discretion to extend time for lodging a reference notwithstanding the expiry of fourteen (14) days period prescribed and the court acts judiciously bearing in mind facts placed before it and to meet the ends of justice. To buttress this argument, counsel cited Article 159(2)(d) of the Constitution and the cases of Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 6 Others (2013) eKLR and Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others (2011) eKLR. Indeed, counsel submitted that the inability to file the reference within fourteen (14) days was not deliberate and the reasons given for the delay are well founded to warrant enlargement of time by the court.

9.  On items no. 1 and 2 of the 2nd Interested Party’s Bill of Costs, counsel submitted that the applicable principles as regards setting aside or varying a taxation of a bill of costs are that a court cannot interfere with the taxing officer’s decision on taxation unless it is shown that the decision was based on error of principle, or the fee awarded was manifestly excessive as to justify interference which legal parameters were laid down in First American Bank of Kenya v Shah and Others (2002) 1 E.A 64 at 69.

10.  Counsel further submitted that the Taxing Officer categorically stated that the proceedings herein were neither complex nor were novel issues raised and in the same breadth enhanced the basic instruction fees from a minimum of Kshs. 100,000/- to Kshs. 3,000,000/-. In counsel’s view, the justifications given do not warrant the exorbitant increase of instruction fees. To that end, counsel cited the case of Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W’Njuguna & 6 Others (2006) eKLR. Counsel therefore submitted that an award of Kshs. 3,000,000/- as instruction fees as well as the award of Kshs. 1,000,000/- as getting up fees are grossly excessive.

11.  On the other hand, counsel submitted that the 1st Interested Party in its Bill of Costs filed on 13th May, 2016 was awarded instruction fees in the sum of Kshs. 1,500,000/- in a ruling delivered on 22nd June, 2017 which ruling was later upheld by this court. Indeed, counsel submitted that it is well settled that so far as practicable there should be consistency and uniformity in awards. Counsel therefore urged that the Applicant has made out a case for this court to interfere with the decision of the Taxing Officer.

12.  Regarding costs of this application, counsel cited the Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2014) eKLR and Retired Justice Kuloba in his book “Judicial Hints on Civil Procedure, 2nd Edition at page 99 for the proposition that costs must follows the event. It was therefore urged that the application be allowed as prayed.

13.  The 2nd Interested Party did not file submissions in respect of the application.

Analysis and Determination

14.  I have considered the arguments advanced by the parties herein. The    issue for determination is whether the time for filing of this reference should be enlarged and the reference be deemed to have been properly filed, and secondly, whether the bill of costs herein should be remitted for taxation by a different Taxing Master or in the alternative, this court re asseses the bill.

15.  I address the question on enlargement of time first, as should the answer thereto be in the negative, then there would be no room to delve into the second issue.  Paragraph 11 of the Advocates’ Remuneration Order provides as follows: -

“11. Objection to decision on taxation and appeal to Court of Appeal.

(1) Should any party object 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 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 by subparagraph (1) or subparagraph (2), [and] may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(5) The High Court shall have power in its discretion by order to enlarge the 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 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.”

16.  The provisions of this paragraph were further expounded by the Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 Others (2017) eKLRwhere the court held that:-

“23] It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as:

“the under-lying principles that a Court should consider in exercise of such discretion:

1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents if the extension is granted;

6. Whether  the  application  has  been  brought  without undue delay; and

7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

17.  The reason advanced by the applicant for the delay in lodging this reference is that there was no notice to them regarding the delivery of the Taxing Master’s ruling on the matter on 22nd February 2021 after the ruling was not delivered as scheduled on 16th February 2021. This fact has not been controverted and whereas more diligence would have been expected of the counsel for the applicant to follow up on the position of the matter after 16th February 2021, the lapse from the end of the court renders the delay excusable. The court is enjoined at all times to do justice to the parties and in the circumstances of this case, am persuaded that the court should exercise the discretionary power to enlarge time in favour of the applicant especially noting that no prejudice will be occasioned to the respondent.

18.  On the second issue, the Applicant is disputing Item Nos. 1and 2 of the Party and Party Bill of Costs dated 29th May, 2018 whereby the 2nd Interested Party sought Kshs. 150,000,000/- as instruction fees and Kshs. 50,000,000/- as getting up fees based on the value of the tender. In her ruling, the Taxing Officer observed that the said amounts were excessive and judicial review proceedings being purely public law proceedings are not pegged on the value of the subject matter as was held in the case of Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others [2006] eKLR.She also observed that costs should not be allowed to rise to such level as to confine access to justice to the wealthy; a successful litigant ought to be fairly reimbursed for the costs he had to incur in the case and the general level of remuneration of advocates must be such as to attract recruits to the profession and so far as practicable there should be consistency in the awards made. Accordingly, she held that the sum of Kshs.3,000,000/- was reasonable and getting up fees taxed at Kshs. 1,000,000/- taking into account the time taken in the matter, scope of work done and the nature of the dispute herein.

19.  The only way that any person can ascertain whether or not the discretion had been applied judiciously is by evaluating the reasons given by the person making the decision. The reasons do not have to be long or elaborate; they could be as simple as recognizing and giving effect to the doctrine of precedent. When no reasons are given for arriving at a particular decision, there is a real possibility that an appellate court may conclude that the decision maker had not applied his or her mind judiciously.

20.  The taxing officer has given reasons for her decision.  She has clearly   analysed the applicable legal principles. It is now trite law that the High   Court will only interfere with the decision of a Taxing Master in cases   where there has been shown to be an error in principle.  In Republic v  Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna  [2006] eKLR, Hon. Justice J. B. Ojwang (Retired) stated as follows:-

“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.” [Emphasis mine]

21.  Differently put, before the court can interfere with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong. This means that the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the taxing master, but only when it is satisfied that the taxing master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling.

22.  The applicant has alluded to taxation of costs awarded to the first Interested party herein at 1,500,000. I note the award of sh1,500,000 to the 1st Interested party by the Taxing Master (a different taxing master from the one in the impugned taxation herein) was challenged before this court (Nyamweya J as she then was) by the 1st Interested Party as being low and not commensurate with the work done. The challenge came a cropper owing to non compliance with the necessary legal procedure and the application was dismissed. The quantum of instruction fee payable was thus not delved into.

23.  In the instant application, alive to the fact that the Taxing officer gave cogent reasons for her decision and applied the right principles and in line with the decision in Republic v Ministry of Agriculture& 20 Others Ex Parte Muchiri W’ Njuguna (supra), I find no ground warranting this court’s interference with the Taxing Master’s findings.

24.  With the result that the application dated 17th June 2021 is dismissed with costs to the 2nd Interested Party.

Dated, signedand deliveredat Nairobithis3rdday ofFebruary 2022.

............................

A. K. NDUNG'U

JUDGE