Twiga Motors Limited v Dalmas Otieno Onyango [2017] KEHC 10002 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 706 OF 2008

TWIGA MOTORS LIMITED……………………….……........PLAINTIFF

-VERSUS-

HON. DALMAS OTIENO ONYANGO................………….DEFENDANT

RULING

[1]The Notice of Motion dated 6 October, 2016 was filed herein by the Defendant, Hon. Dalmas Otieno Onyango, for orders that the Court be pleased to grant orders of Stay of Execution of the Certificate of Taxation in this matter pending the taxation of the Party and Party Bill of Costs dated 8 September 2016. The application was brought, pursuant to Section 3Aof the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules, 2010.

[2] The grounds relied on in support of the application are that, after the Deputy Registrar delivered a Ruling on Taxation in the Party and Party Bill of Costs dated 7 January 2013 on 6 February 2014, the Plaintiff filed a Chamber Summons application dated 27 May 2014, seeking the setting aside of the Taxing Master's decision; and that the application was heard and dismissed on 26 January 2015 with costs to the Defendant.Thereafter, the Plaintiff filed another application, dated 9 February 2015, seeking the review of the Orders of 26 January 2015, which was equally dismissed with costs to the Defendant on 22 April 2016. Consequently, the Defendant filed a Party and Party Bill of Costs dated 8 September 2016 which is pending taxation. In the premises, the Defendant's posturing is that it would be in the interests of justice for execution in respect of the Plaintiff's Costs of Kshs. 491,709/= as awarded on 6 February 2014 by Hon. D. Nyambu, to be stayed pending taxation of his Bill of Costs dated 8 September 2016.

[3] The application is supported by the affidavit of Advocate Owino Opiyo, annexed thereto, sworn on 6 October 2016; which in effect, is a reiteration of the grounds aforestated. In support of the averment that the Plaintiff is intent on moving the Court in execution for costs, the Defendant annexed copies of the letters dated 25 August 2016 and 16 September 2016 to the Supporting Affidavit (marked Annexures OO-2 and OO-3), together the Defendant's response thereto by which he requested the Plaintiff to halt the execution process pending taxation of his Bill of Costs dated 8 September 2016(Annexure OO-4).

[4] In response to the Defendant's application, the Plaintiff relied on the affidavit of AdvocateVirginia Wangui Shaw, sworn on 21 August 2016, affirming that on 6 February 2014, Hon. Nyambu taxed the Plaintiff's Party and Party Bill of Costs at Kshs. 491,709/=; and that on two occasions, the Plaintiff wrote to the Defendant's Advocate demanding payment of the taxed amount without success. The same letters dated 25 August 2016 and 16 September 2016 aforementioned were relied on in support of this averment, and copies thereof annexed to the Replying Affidavit as Annexures VWS-1.

[5] It was further averred by Counsel for the Plaintiff that on or about 20 September, 2016, the Defendant wrote to them indicating that they had filed a Bill of Costs against the Plaintiff and were intending to set off the award in respect of that Bill from the Plaintiff's taxed costs of Kshs. 491,709/=. According to the Plaintiff, the application for stay is premature and baseless for the reason that the Defendant had not exhibited any real and or imminent threat of execution; and further that the Defendant had not demonstrated the tripartite requirements for the grant of stay; namely , substantial loss, security as well as proof that the application had not been without undue delay. Accordingly, the Plaintiff opposed the Defendant's application for stay of execution.

[6] Learned Counsel for the parties, in urging their clients' respective positions, relied on the written submissions filed herein on 11 November 2016 and 3 February 2017, respectively. It was the submission of Counsel for the Defendant that the Court has the discretion under Section 3A of the Civil Procedure Act, to make orders in the interest of justice; and that this is one such situation in which an order of stay would meet the ends of justice granted that the Defendant has a pending Bill of Costs against the Plaintiff that is awaiting taxation. It was therefore urged that, whereas the Defendant is willing to pay the Plaintiff's taxed costs, it would only be prudent for execution thereof to be stayed to enable a set off after the ascertainment of the Defendant's costs against the Plaintiff.

[7] The Plaintiff's Counsel, on the other hand submitted that an order for stay being discretionary, it was incumbent on the Defendant to demonstrate that he would suffer substantial loss unless the order of stay was granted; and that the application had been filed without undue delay; which the Defendant failed to do. The Court was urged to note that the decision of the Taxing Master was rendered on 7 January 2013; and that it was not until 6 October 2016 that the application for stay was filed. It was further submitted that there was no demonstration by the Defendant that the Plaintiff will not be able to refund the costs or that he will suffer substantial loss if the order for stay is not granted. Counsel relied on the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR for the proposition that the mere fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss, because the execution process is a lawful process.

[8] I have given due consideration to the Defendant's application, the grounds set out in the Notice of Motion itself, the affidavits filed in respect thereof, as well as the written submissions filed by Learned Counsel and the authorities cited by them. Needless to say that taxation of costs is governed by a special and complete code, and that the provisions of the Civil Procedure Rules are, in the main, inapplicable thereto. This was well expressed in the case of Machira vs Magugu [2002] 2 EA 428, by Ringera, J (as he then was) thus:

"...the Advocates Remuneration Order is a complete code and there is no provision for the invocation of the Civil ProcedureRules... any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order..."

[9] The foregoing viewpoint was, on appeal, upheld by the Court of Appeal in Machira & Co. Advocates vs. Arthur K. Magugu & Another [2012] eKLRthus:

"With regard to advocates' bills of costs, we agree with the decision of Ringera, J (as he then was) in Machira vs Magugu  [2002] 2 EA 428 that the Advocates Remuneration Order is a complete code which does not provide for appeals from taxing    master's decisions. Rule 11 thereof provides for ventilation of  grievances from such decision through references to a judge  in chambers. The effect may be viewed as an appeal or a  review but these being legal terms in respect of which different considerations apply, they should not be loosely used. Appeals require the typing of proceedings, compiling records of appeal and hearing of the same in open court.  Reviews, however, would require provisions akin to those in Section 80 of the Civil Procedure Act of discovery of new and  important matters, errors on the face of the record and so on.   In our view the Rules Committee intended to avoid all that and provide a simple and expeditious mode of dealing with decisions on advocates' bills of costs through references under Rule 11 to a judge in Chambers..."

[10] To the extent therefore that the Plaintiff insisted on the touchstone set out in Order 42Rule 6of the Civil Procedure Act, those arguments appear to miss the mark, for it is now trite that it is permissible for the Court to invoke its inherent jurisdiction in such instances for the sole purpose of ensuring the ends of justice are met. For instance, in Dilbagh Singh Brothers Investment Ltd vs. Alvi Auto Spares Ltd [2012] eKLR it was recognized that:

"...There is no specific provision under the Advocates Remuneration order as far as the Court  is aware that provides      for stay of execution in such circumstances. The applicant has  however sought to rely on the provisions of Section 3A, 63(e) of the Civil Procedure Act, Order 22 of the Civil Procedure Rules and any other provisions of the law. Section 3A of the Civil Procedure Act, it has been stated time and again does not give  the Court jurisdiction but only reserves the Courts inherent jurisdiction to ensure that the ends of justice are achieved and to prevent abuse of the court's process...The other provisions of the Civil Procedure Act, it has been held, do not apply to taxation under the Advocates Remuneration Order. I agree with the decision of Kasango, J in Nyamogo and Nyamogo  Advocates vs. Mwangi [2008] 1 EA 281, where the learned Judge held that whereas the Court is entitled to invoke its inherent jurisdiction, the Civil Procedure Act does not apply to  matters relating to the Advocates Act since the Advocates Remuneration Order has elaborate procedures laid down for   objecting to taxed costs...However, the Court may in appropriate case invoke its inherent jurisdiction in cases where there is no relevant provision and where to fail to do so would amount to the court being unable to ensure the ends of    justice are attained and to prevent abuse of its process..."

[11] And in the Mereka & Co. Advocates vs. Eng. A.S. Kitololo t/a Kitololo Consultants Engineers Nairobi HCMC No. 389 of 2011, the same viewpoint was expressed thus:

"I am of the view that since there is no specific provision under the Advocates Act that deals with the issue of stay of execution or proceedings pending a reference of taxation, this  Court has the residual jurisdiction under its inherent powers to grant such a stay and invoke the provisions of the Civil   Procedure Act and Rules only to that extent."

Nevertheless, it is recognized the court may be guided by the conditions set in Order 42 Rule 6(2) of the Civil Procedure Rules, and take an analogy therefrom in determining an application such as the instant one.

[12] With the foregoing in mind, I have considered the Defendant's application and it is manifest that it has been brought two years after the taxation was done by the Deputy Registrar. However, it is also true that the Plaintiff thereafter filed a series of applications, that last of which was determined only on 22 April 2016. Accordingly, I am prepared to find and hold that there has not been inordinate delay in filing of the stay application, given its proximity to the filing of the Defendant's Bill of Costs. What has not been demonstrated is that the Defendant stands to suffer substantial loss by reason of execution for the costs. Indeed, it was the contention of the Plaintiff, which contention is borne out of the court record, that all the Plaintiff did is to write letters requesting for payment. There is no indication that execution is imminent. In any event, execution being a lawful court process, it can hardly be argued that if followed through, it would occasion a party substantial loss. In this regard, I would entire endorse the expressions of Gikonyo, J in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR that:

"... in law, the fact that the process of execution has been put   in motion, or is likely to be put in motion, by itself, does not  amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties   have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so  because execution is a lawful process.The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful    party..."

[13]The foregoing being my view of the matter, it is my resultant finding that the Defendant's application dated 6 October 2016 is devoid of merit and is accordingly dismissed with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF SEPTEMBER, 2017

OLGA SEWE

JUDGE