Rosa Associati v KTK Advocates [2017] KEHC 2530 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC APPLICATION NO. 81 OF 2016

ROSA ASSOCIATI..................................................................CLIENT/APPLICANT

VERSUS

KTK ADVOCATES.................................................... ADVOCATE/RESPONDENT

RULING

This ruling relates to the application dated 27th June, 2017 by the client/applicant who has sought orders to stay the entry of ruling on the advocate’s/respondent’s application dated 11th April, 2017 and all consequential orders thereto pending the hearing and determination of the application dated 8th March, 2017.

It is premised on the grounds set out in the body of the same and it’s supported by the annexed affidavit of James Nyiha Advocate sworn on 27th June, 2017.  It is averred that the applicant filed the application dated 8th March, 2017, seeking to have the decision of the taxing master set aside or vacated.

That the said application came up for hearing on 4th April, 2017 before Thuranira, J when it was adjourned as the client needed more time to put in a further affidavit, following which the applicant was granted 14 days to do so.  That while the said application was still pending before court, the advocate on 11th April, 2017 filed an application seeking entry of judgment as per the certificate of taxation dated 3rd March, 2017 which was argued orally on 27th April, 2017 and reserved for ruling on 6th July, 2017.

The applicant contends that the ruling on the respondent’s application for entry of judgment would greatly prejudice the applicant’s case as his pending application would be rendered nugatory.

The advocate/respondent filed grounds of opposition on 18th August, 2017 as follows; that the applicant was on 23rd February, 2017 allowed to apply for a stay of execution within 30 days; that the advocate filed his application for entry of judgment on 11/4/2017 and the same was heard on 27/4/2017 in the presence of both parties; that the applicant filed its reference on 8/3/2017 but never bothered to schedule it for hearing; that the applicant wholly fails to establish a legal or factual basis to arrest the ruling; that delivery of the ruling will not prejudice the applicant’s rights in any way and that the application is an abuse of the court process.

When the application came up for hearing, counsels made oral submissions which I have duly considered.  The basis of the application is that there is a certificate of taxation that the client/applicant is not agreeable to, and has filed a reference challenging the same.  The said application is still pending before the court but before it could be heard, the advocate/respondent filed an application dated 11/4/2017 seeking entry of judgment pursuant to the certificate of taxation, which application was heard and its pending ruling.

Counsel for the advocate/respondent has argued that just because there is a pending reference, it does not mean that the other party should wait forever.  He averred that a reference is not a stay of execution and that the ruling if delivered will not prejudice the client’s position.  He relied on section 1A and 1B of the Civil Procedure ActandArticle 159 of the Constitution and contended that justice shall be done to all, without delay.

The court has considered the material before it.  The record shows that the ruling on taxation was delivered on 23rdFebruary, 2017 and on the said date a stay of execution was granted for 30days.  On 8thMarch, 2017, the client filed a reference which came up for hearing on 4/4/2017 when the counsel for the client sought leave to file a further affidavit. While the reference was still pending, the advocate filed and prosecuted his application dated 11/4/2017.  The client has contended that he could not get a date in the registry for his application as the file was in the judge’s chambers pending ruling for the application dated 11/4/2017.

The court notes that the application dated 11/4/2017 came up for hearing on 27/4/2017 when it proceeded for hearing.  Though the client’s application was still on record, he had not fixed it for hearing after the parties appeared in court on 4/4/2017.  Between the date of the last court appearance and that of the hearing of the application dated 11/4/2017, it was barely a month and considering that the client’s application had been filed on 11th March, 2016, the client cannot be said to have unreasonably delayed in prosecuting the application.

Though there is a certificate of taxation, the same can be challenged by way of a reference which the client herein duly filed and within time.  I do appreciate that a reference does not operate as a stay of execution but I am not persuaded by the argument by counsel for the advocate that the client shall not suffer any prejudice if the ruling seeking to enter judgment against it, is delivered before the reference is heard.  It is in the interest of justice that the application dated 11/3/2016 be disposed off first before this court can render a ruling to the advocate’s application dated 11/4/2017.  It goes without saying that the outcome of the reference will determine the way forward for the application dated 11/4/2017.

In the premises aforegoing, I do allow the application dated 27/6/2017 with no orders as to costs.  The application dated 8/3/2017 be fixed for hearing on priority basis.

It is so ordered.

Dated, Signed and Delivered at Nairobi this3rdday of November, 2017.

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L. NJUGUNA

JUDGE

In the Presence of

……………………. for the Applicant

………………. for the Respondent