Twiga Motors Limited v Dalmas Otieno Onyango [2016] KEHC 7638 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

HCCC CASE NO. 706 OF 2008

TWIGA MOTORS LIMITED……………….....PLAINTIFF/APPLICANT

VERSUS

HON. DALMAS OTIENO ONYANGO.....DEFENDANT/RESPONDENT

RULING

The Notice of Motion dated 9 February 2015 was filed by the Plaintiff/Applicant pursuant to the provisions of Section 80 of the Civil Procedure Act, Order 45 Rule 1and Order 51 Rule 1 of the Civil Procedure Rulesas well asRule 11 of the Advocates Remuneration Orderfor orders that the Court be pleased to set aside and review the orders given on the 26 January 2015dismissing the Plaintiff's Chamber Summons application dated 27 May 2014 and filed in Court on 28 May 2014, and that costs of the application be provided for.

The application is supported by the Affidavit of Alice Gacheri Nyagah sworn on 9 February 2015, the Supplementary Affidavit sworn on 20 May 2015 and the following grounds:

a) There is an error apparent on the face of the record, in that the Ruling on the Bill of Costs was delivered by the Registrar on the 6 February 2014 and the Reasons given on 22 May 2014.

b) That the Application under Rule 11 of the Advocates Remuneration Order was filed within 14 days of delivery  of the Reasons; and that the delay in the delivery of the Reasons is not attributable to the Applicant.

c) That there is an error apparent on the face of the record in that the Court calculated the time stipulated from the date of taxation as opposed to the date when the Reasons were furnished to the Applicant.

d) That no appeal from the Ruling has been preferred, but that as a result of the said error, the Plaintiff/Applicant has been gravely prejudiced, hence the application.

e) That the application has been brought without inordinate delay.

The background information provided in the Supporting Affidavit is to the effect that the Plaintiff's Bill of Costs for the sum of Kshs. 2,713,321 was taxed at Kshs. 491,709 in a Ruling delivered on 6 February 2014. Being dissatisfied with the decision of the Taxing Master, the Plaintiff filed an objection and a request for Reasons for the decision vide the letter dated 11 February 2014 marked AGN-1. According to the Plaintiff/Applicant, in spite of reminders vide the letters dated 3 April 2014 and 5 May 2014, no Reasons were supplied, for the Deputy Registrar's ultimate communication dated 22 May 2014 was to the effect that the Reasons for Taxation were in the Ruling dated the 6 February 2014. Thereupon, the Plaintiff prepared and filed the Chamber Summons Application dated 27 May 2014, which is the Application that was dismissed on 26 January 2015 for having been filed out of time.

The Plaintiff's posturing therefore is that, in dismissing the aforesaid application, the Court computed time from the date of delivery of the Ruling on Taxation, namely, 6 February 2014, and not 22 May 2014, which was the date when, according to the Plaintiff/Applicant, the Reasons were given by the Taxing Officer; and that this amounts to an error apparent on the face of the record to warrant a review.

The Defendant/Respondent opposed the Application and relied on the Grounds of Opposition dated 25 February 2015, contending that:

a) Granting the orders sought would amount to the court sitting on its own appeal;

b) There is no error on the face of the record;

c) that there is inordinate delay in bringing the instant Application;

d) That the application of 27 May 2014 having been dismissed for lack of supporting affidavit cannot in law be reinstated by way of review.

The Court has carefully considered the Notice of Motion, the affidavits filed in respect thereof as well as the written submissions filed herein. Order 45 Rule 1 of the Civil Procedure Rules,under which the instant application has been brought provides as follows;

“(1) any person considering himself aggrieved-

(a)  by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or

(b) by way a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

The above provisions were restated in the case of Muyodi –vs- Industrial & Commercial Development Corporation & Another (2006) 1 EA 243 wherein  the court held thus:-

“For an application for review under Order 45 Rule 1 to succeed, the applicant was obliged to show that there had been discovery of new and important evidence which, after due diligence, was not within his knowledge or could not be produced at that time.  Alternatively, he had to show that there was some mistake or error apparent on the face of the record or some other sufficient reason.  In addition, the application was to be made without unreasonable delay”

Under Rule 11 of the Advocates Remuneration Order, it is stipulated thus:

"(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."

The proceedings show that, for the reason that the Plaintiff/Applicant did not attach an affidavit to support its Chamber Application dated 27 May 2014 to explain the three months delay in filing the said application,  the Court, in its Ruling dated 26 January 2015, came to the conclusion that the said application was time-barred, hence its dismissal. At paragraph 7 of the said Ruling, the court's observation was thus:

"Bearing in mind that the decision of the taxing master was rendered on 6th February 2014, the court was unable to understand the circumstances under which the Plaintiff filed     its present application on 27th May 2014, which was more than   three (3) months from the date the said decision was given."

It is evident therefore that the Plaintiff/Applicant did not place before the court the correspondence that he attached to the instant application, which documents were in its possession at the time and could have been easily availed for the Court's consideration. In the premises, it can hardly be said that the Court fell into error when it was the Plaintiff's own fault that the relevant material was not placed before the court.

It could however be argued that Paragraph 11(2) of the Advocates Remuneration Order does not require that a Chamber Summons filed thereunder be accompanied by an affidavit; and that the facts relating to the Reference herein could be ascertained from the court record. Nevertheless, since no reasons were given vide the letter of 22 May 2014, for that letter merely stated that the Reasons for Taxation were in the Ruling dated the 6 February 2014, the fact would remain that the 14 days from the date of Ruling would be reckoned from 6 February 2014, and therefore had long elapsed. Thus, the only way out of the situation in which the Plaintiff/Applicant found itself after the letter of 22 May 2014 was to apply for extension of time pursuant to Paragraph 11(4) of the Advocates (Remuneration) Order, which provides that:

"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 ... notwithstanding that  the time sought to be enlarged may have already expired."

In the premises, even if the court were inclined to grant a review, it would serve no useful purpose in the circumstances herein. This was the viewpoint taken by the court in the case of Evans Thiga Gaturu vs. Kenya Commercial Bank Limited [2012] eKLRby Odunga J thus:

"In the present case, the ruling on taxation was made on 6th   July 2011. If the client considered the said decision to contain  the reasons, he could file the reference within 14 days from the   date thereof. If, on the other hand, he was of the view that there  were no reasons contained in the decision, he could request   for the same in writing, in which case he would be bound to wait for the same. If, however, at a later stage he decided to prefer the reference notwithstanding the failure by the Taxing  Master, after the lapse of the 14 day period, it is my view that  he would be bound to apply for extension of time under  paragraph 11(4) of the Remuneration Order, in which case  one of the grounds if not the only ground would be the failure   by the Taxing Master tofurnish him with the reasons...However, a party would not be entitled to an  indefinite period within which  to prefer a reference simply because the reasons were not given..."

I would entirely agree with the foregoing exposition of the law and hold that, from the facts of this case, the Plaintiff/Applicant has failed to demonstrate that there is an error apparent on the face of the record, or that the Learned Judge erred in computing time.

The foregoing being my view of the matter, I would dismiss the Notice of Motion dated 9 February 2015 with costs.

Orders accordingly.

OLGA SEWE

JUDGE

DATED AND DELIVERED AT NAIROBI THIS  22ND   DAY OF APRIL, 2016

CHARLES KARIUKI

JUDGE