Wilson Mutegi Nyaga v Jonah Muthengi Toto [2022] KEHC 2538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

HIGH COURT CIVIL MISCELLANEOUS CASE NO. 123 OF 2019

WILSON MUTEGI NYAGA………………………….……APPELLANT

VERSUS

JONAH MUTHENGI TOTO…………………….....……RESPONDENT

RULING

1. Before this court is a Notice of Motion dated 27th July, 2021 lodged by Wilson Mutegi Nyaga, the applicant seeking the following prayers: -

(i) That the decree dated 20th August, 2020 be set aside and certificate of costs issued on 17th January 2020 be reviewed (Sic).

(ii) That the respondents bill of costs dated 17/12/2019 be tasked afresh in the presence of the applicant.

(iii) That there be a stay of execution pending the hearing and determination of this application.

2. The grounds upon which this application have been brought are listed as follows namely: -

a) That execution has taken place with a warrant of arrest being issued.

b) That costs assessed are high, exaggerated and oppressive.

c) That items of the bill of costs are unreasonable.

d) That costs in the lower court added to the costs in the high court have made amount required unreasonably high.

e) That it is in the interests of justice if the costs assessed are reviewed.

f) That the decree and certificate of costs issued are both erroneous.

3. In his supporting affidavit sworn on 27th July 2021, the applicant avers that he was aggrieved by a judgement in the lower court and lodged an appeal in Kitui Court. He however does not give citations or references of either the lower court case or the appeal filed.

4. He avers that he was kept in the dark and was surprised when he was confronted with a warrant of arrest on 14th july 2021 where he was arrested and told to pay in excess of Kshs. 600,000.

5. He avers that he was not served with notice of taxation or Notice to show cause.

6. The Applicant maintains that the judgement sum was Kshs. 86,000 and was shocked to find that an advocate is to be paid Kshs. 200,000 to assess a bill of Kshs. 86,000. He avers that the advocate never represented him in the appeal.

7. He further contests the assessment of travel costs of Kshs. 5,500 when the normal bus fare is Kshs. 800 inclusive of return fare. He also claims attendance costs of Kshs. 20,000 is extremely high and exorbitant in his view.

8. He claims that he is entitled to protection of the law asserting that he paid Kshs. 92,000 which he had deposited as security. He prays that proper assessment and calculations be made to determine how much he should pay.

9. The Respondent has opposed this application through his replying affidavit sworn on 29th July, 2021. He contends that this application is incurably defective as it is not a reference or objection to the taxation of party and party costs. He avers that the application is filed outside the 14 period prescribed by law for anyone to file objection if aggrieved by a decision of a taxing master.

10. He contends that this application has been filed after one year and seven months after taxation.

11. The Respondent claims that the applicant is being evasive and is only interested in causing delays.

12. He claims that the applicant lost both in lower court and in this court and was condemned to pay costs in both the High Court and Lower Court. He has however not provided the details.

13. The respondent further claims that the applicant was aware of taxation proceedings owing to the notices issued to him. He has however not exhibited any evidence of the same despite stating the contrary under paragraph 14 of his replying affidavit.

14. The Respondent further insists that the applicant was present in the lower court in Kyuso when judgement was delivered and also in this court when judgement was delivered.

15. He avers that taxation of costs was done properly in accordance with the law and denies that the same was unfair. He also claims that the taxing master was best placed to know what he paid as bus fare and denies that the assessment in that regard was exaggerated or excessive He claims that the taxed amount was justified.

16. He further claims that he is also entitled to enjoy fruits of his judgement without unnecessary delays. He avers that the security of costs paid to him was a drop in the ocean as the taxed amount was much higher.

17. He submits that he ought to be paid at least Kshs. 380,000 in the interest of justice if this court was inclined to allow this application despite the defects he has highlighted.

18. This court has considered this application which is brought through this miscellaneous cause no. 123 of 2019. This court is quite limited by the information placed by the applicant regarding his grievances. I have considered the response which I also do not find useful either in that respect because both parties talk of a lower court case and an appeal in this court but no details have been presented. This court is unable to fathom the basis upon which assessment of costs accruing from an alleged appeal ended up in this miscellaneous cause which began with filing of Respondent’s party and party bill of costs dated 17th December, 2019. This court is unaware of the basis of the said party and party bill of costs. If there was an appeal which was dismissed as alleged by the respondent, why was the bill of costs not filed within that appeal?

19. The Respondent herein contends that this application is defective because it was not filed within 14 days upon taxation but the applicant’s assertions that he was unaware of the taxation, in my view has not been explained to sufficiently because the respondent has failed to tender proof of service of the bill of costs and the taxation notice. Besides that, he claims that the applicant was present when the judgement was delivered both at the lower court and in this court but in the absence of evidence, it is difficult to ascertain those allegations. As I have observed above, what is before me is a miscellaneous cause. This court is unable to tell if the bill of costs, the subject of this application is based on that unspecified appeal or whichever cause. It is given that the applicant herein is appearing in person and most of the procedural respects may escape him but Article 159 (2) (d) provides that;

‘‘justice shall be administered without undue regard to procedural technicalities.’’

I agree that the applicant deserves protection of the law and where issues are not clear/certain as they appear in this miscellaneous cause, it is in the interest of justice that a party be given a chance to be heard. He says he was not made aware of taxation and has wondered how the taxed costs is much higher than the principal amount. This court for the reasons stated above is unable to verify the applicant’s claim and though I find that he had the burden of proof and therefore should have placed all the material before this court, the fact that he is unrepresented cannot be disregarded.

20. It is true that the procedure to challenge a decision of a taxing master in taxation is provided under paragraph 11 of the Advocates (Remuneration) Order which provides;

“(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 above position expounded by the respondent herein presupposes that the taxation was done inter-parties or with notice to the Respondent or judgement debtor. But in this instance, the applicant claims he was not served with the taxation notice or the bill itself and as have founded out above, the respondent has not successfully contested that fact.

21. The respondent has also pointed out that the provisions under which the application has been brought have not been spelt out but that in itself is not fatal to an application before court. Order 51 Rule 10 of the Civil Procedure Rules is clear on that besides the fact that an application cannot be defeated merely on a technicality or want of form.

22. This court has inherent powers under Section 3A and 63 (e) of the Civil Procedure Act to make such orders necessary for the ends of justice. The applicant has applied that the decree be set aside which in itself is a tall order because he has not cited which decrees he wants set aside and why. The prayer therefore fails because it is not sustainable. On the other hand, I find merit in his application that the certificate of costs be reviewed and set aside. The same is hereby set aside. The respondent has asked this court to order that he should be paid Kshs. 380,000 but I find no basis to make such an order.

In sum, I find that it is in the interests of justice to allow the Notice of Motion dated 27th of July, 2021 on the following terms: -

(i) The certificate of costs herein and all consequential orders be set aside.

(ii) The taxation of bill of costs be done in the parent file. If costs were awarded in the lower court or in the appeal, then costs be taxed afresh in those respective files with due notice to all parties.

(iii) I shall make no order as to costs in this matter so each party to pay own costs.

Dated, SignedandDeliveredatKituithis8th day of February, 2022.

HON. JUSTICE R. K. LIMO

JUDGE