Too v Cheruiyot [2022] KEHC 16453 (KLR)

Too v Cheruiyot (Civil Appeal 26 of 2011) [2022] KEHC 16453 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16453 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 26 of 2011

AN Ongeri, J

December 16, 2022

Between

David Kipkurui Too

Appellant

and

Joseph Kiplangat Cheruiyot

Respondent

Ruling

1. The application coming for consideration is dated July 5, 2022 seeking the following orders:-(i)That this application be certified urgent and service thereof be dispensed with in the first instance.(ii)That leave of the court be granted for the firm of M/s EM Orina & Co Advocates to come on record to act for applicant herein.(iii)That there be a stay of execution Hon E Karani the Taxing Officer orders issued on the June 29, 2022 pending hearing and determination of the application and reference.(iv)That there be a stay of execution of the certificate of taxation issued on May 25, 2015 arising out of the advocates/client bill of costs dated November 6, 2013 pending the hearing and determination of the reference.(v)That the decision of Hon J Ndururi the Taxing Officer delivered on the May 26, 2015 allowing the bill of costs as drawn be and is hereby set aside/or vacated.(vi)That the ruling and orders issued by this court on the December 17, 2021, March 3, 2022 and February 2, 2022 be reviewed and or be set aside.(vii)That this honourable court be pleased to enlarge the time within which to file a notice of objection and a fresh reference against the decision of the taxing officer delivered on May 26, 2015. (viii)That the honourable court be pleased to allow the applicant to liquidate the decretal sum after assessment and or taxation of the refresh reference.(ix)That the draft reference and notice of objection attached herewith be deemed as properly filed subject to payment of the requisite court fees.(x)That the costs of this application be provided for.

2. It is based on the grounds on the face of it and supported by the affidavit of Joseph Kiplangat Cheruiyot.

3. The applicant avers that he was previously represented by the firm of M/s Nyaingiri & Co Advocates and was now seeking leave of the court for the firm of M/s EM Orina & Co Advocates to come on record as it was necessary to obtain leave of court in order for another advocate to come on record after judgment has been entered.

4. The applicant avers that the bill of costs dated November 6, 2013 was taxed as drawn without considering the applicants submissions which was a clear violation of the principles of natural justice which provide that a party should not be condemned unheard.

5. The applicant avers that the amount awarded by the taxing master was high and excessive as to amount to an injustice and error in principle.

6. The applicant avers that he challenged the decision of the taxing master by filing a reference and the High Court vide a ruling dated December 17, 2021 dismissed the reference by merely stating that it did not find any basis for interfering with the fee awarded.

7. The applicant avers that based on the ruling dated December 17, 2021 the firm of M/s Weldon Ng’etich & Co Advocates proceeded to extract warrants of execution and proceeded to unlawfully and unprocedurally proclaim his property in violation of order 22 rule 18 of the Civil Procedure Rules.

8. The applicant was therefore seeking that the rulings and orders issued by the court on December 17, 2021 and March 3, 2022 by Hon Lady Justice AN Ongeri and ruling by Hon Lady Justice MC Oundo on February 2, 2022 be reviewed and/or set aside as they were erroneously issued.

9. The applicant avers that on June 29, 2022 Hon E Karani the taxing master erroneously issued execution orders which comprises of warrants of arrest.

10. The applicant avers that he was reliably informed that the respondents were in the process of executing orders issued on June 29, 2022 and had obtained a warrant of arrest. The applicant therefore was apprehensive that he would suffer substantial and irreparable loss and damages upon arrest.

11. The applicant avers that he has established the threshold for stay of execution entrenched under order 42 of the Civil Procedure Rules.

12. The respondent filed a replying affidavit in response to the application.

13. The respondent avers that the application dated July 5, 2022 was an attempt by the judgment debtor and his current advocates who previously acted for him to re-open a taxation matter which was concluded almost nine (9) years ago.

14. The respondent avers that they succeeded in the appeal and taxation done herein, the applicant has since neglected. refused and/or ignored to pay the decretal sum compelling their advocates on record to apply to court for notices to show cause and later warrants of attachment. However, the judgment debtor failed to pay up the decretal sum nor make any proposal.

15. The respondent avers that the High Court vide a ruling dated December 17, 2021 ruled that bill of costs dated November 6, 2013 was taxed properly by the taxing master and that the bill of costs was taxed to scale thereby dismissing the reference which was allowed earlier by Hon Justice H Ongudi to be filed out of time.

16. The respondent avers that the following ruling dated December 17, 2021, the applicant sought for a 30 day stay of execution for them to file an appeal which was granted. The respondent further avers that the applicant subsequently filed a notice of appeal on December 31, 2021 but to date there’s been no appeal filed.

17. The respondent avers that the applicant was in default of the decretal sum and it was against such background that the Hon Deputy Registrar who handled the matter proceeded to issue warrants of arrest against the applicant on June 29, 2022 and the applicant was out on a Kshs 200,000 cash bail.

18. The parties filed submissions which I have considered.

19. The applicant contended that he had complied with the provisions of order 9 rule 9 of the Civil Procedure Rules and therefore the firm of M/S EM Orina & Co Advocates should be granted leave to come on record.

20. The applicant contended that the High Court did not have the jurisdiction to hear and deliver the rulings on the reference filed and that the genesis of the claim herein being a land matter, the same should have been handled by the environment and land court and therefore the High Court was bereft of jurisdiction and the rulings delivered were void ab initio and a court cannot through craft or innovativeness arrogate itself jurisdiction that has not been bestowed upon it either by legislation or the Constitution.

21. The applicant reiterated that bearing in mind that the high court had arrogated itself jurisdiction that it was not clothed with, the court should enlarge time to file a notice of objection and a fresh reference against the decision of the taxing master delivered on May 26, 2015 out of time. The applicant relied on provisions of rule 11 of theAdvocates Remuneration Order.

22. The applicant contended that the rulings dated December 17, 2021 and March 3, 2022 delivered by Hon Lady Justice AN Ongeri were delivered by a court bereft of jurisdiction and the orders dated February 2, 2022 by Hon Lady Justice MC Oundo transferring the matter back to the High Court were erroneous and therefore ought to be reviewed and/or set aside. The Applicant was relying on the provisions of section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules.

23. The respondent submitted that on June 29, 2022 when the applicant appeared before the Deputy Registrar, upon being told to make a proposal for payment of the decretal sum, he said that he wanted the registrar to retax the party & party bill of costs and hence the court issued warrants of arrest against him.

24. The respondent further submitted that the application dated July 5, 2022 lacked merit and ought to be dismissed with costs, as it was calculated to further delay the payment of the decretal sum herein.

25. The issues for determinations are as follows:-(i)Whether the firm of M/s EM Orina & Co Advocates should be granted leave to come on record.(ii)Whether this court should enlarge the time within which to file a notice of objection and a fresh reference against the decision of the taxing officer delivered on May 26, 2015. (iii)Whether the High Court has jurisdiction to hear this matter.

26. On the issue as to whether the firm of EM Orina should be granted leave to come on record, order 9 rule 9 Civil Procedure Rules provides as follows;'When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.'

27. I find that the requirement is the former advocate must be served or the two firms enter into a consent.

28. In the case of Kazungu Kitsao Kivuma v George Kuria Muthoni [2021] eKLR Chepkwony J observed as follows; In my view, the essence of order 9 rule 9 of the Civil Procedure Rules is to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away.'

29. There is no evidence that the former advocates were served with this application and neither is there a consent executed by the two firms of advocates. I find that in the circumstances no leave can be granted to the firm of M/s EM Orina & Co Advocates to come on record.

30. The said firm was on record before a consent was filed and the firm of M/s Nyaingiri & Co Advocates took over the matter on November 13, 2015 and the same procedure should be followed.1. I find that the firm of of M/s E M Orina & Co Advocates is not properly on record in this case.

31. On the issue as to whether the court should enlarge the time within which to file a notice of objection and a fresh reference against the decision of the taxing officer delivered on May 26, 2015, I find that this court already heard the reference filed by the firm of M/s Nyaingiri & Co Advocates and dismissed the same

32. The procedure for filing a reference is espoused in rule 11 of the Advocates Remuneration Order which provides as follows;'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 subsection (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) 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.'

33. I find that the applicant already filed a reference through their former advocates M/s Nyaingiri & Co Advocates dated January 25, 2016 upon being granted leave to file the same out of time and the same was dismissed on December 17, 2021.

34. A brief history of this case is that the respondents filed an appeal from Bomet SRM NO 209 OF 2008 and the same was allowed with costs.

35. On November 6, 2013 the respondents filed a bill of costs which was taxed at 808871. 56

36. The applicant filed a reference through their former advocates M/s Nyaingiri & Co Advocates dated January 25, 2016 upon being granted leave to file the same out of time and the same was dismissed on December 17, 2021.

37. I find that the application dated July 5, 2022 is res judicata since this court heard the reference and dismissed it on December 17, 2021.

38. On the issue as to whether the High Court has jurisdiction to hear this matter, I find that the bill of costs was taxed by the deputy registrar of the High Court and not at the ELC Court and therefore this court was properly seized of this matter.

39. Finally, I find that the application dated July 5, 2022 has been overtaken by events since execution is in progress and the applicant is on bond having been arrested in furtherance of the decree issued herein.

40. I therefore find that the application dated July 5, 2022 lacks in merit and the same is accordingly dismissed with no orders as to costs.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 16TH DAY OF DECEMBER, 2022A. N. ONGERIJUDGE