REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
MISCELLANEOUS CIVIL APPLICATION NO. 23 OF 2016
MATIRI MBURU & CHEPKEMBOI ADVOCATES……………………………APPLICANT
-VERSUS-
OCCIDENTAL INSURANCE COMPANY LIMITED………………………..RESPONDENT
R U L I N G
1. The Chamber Summons filed on 8th February, 2017 is essentially a reference from the decision of the taxing master delivered on 26th January, 2017. I have considered the rival submissions of the parties and take the following view.
2. The procedure for the filing of such a reference by any party aggrieved with the decision of the taxing master is provided in paragraph 11 of the Remuneration Order which provides inter alia that:-
“(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. (emphasis added)
(3)………….;
(4)………….”
3. On the record of the file are two letters dated 30th January, 2017 and filed simultaneously on 2nd February 2017 by the Applicant. One of them seeks reasons for the taxing master’s ruling while the other seeks a copy of the ruling. However, there is no evidence to support the deposition at paragraph 5 of the Applicant’s affidavit that the Applicant received a response to the effect that “reason were in the ruling which was yet to be typed.”
4. Paragraph 11 (1) of the Remuneration Order requires a party seeking reasons for a taxation decision to give notice of the items of taxation to which the party objects which requirement was evidently not complied with in this case. Until the reasons sought under Paragraph 11 (2) of the Remuneration Order, are furnished the period of 14 days as contemplated therein does not begin to run.
5. Thus I am at a loss to understand the statement in the Further affidavit by the Applicant that the “Reference had to be filed as it was to beat the set time lines for filing.”
6. In my own view the provisions of paragraph 11 of the Remuneration Order serve several purposes. Firstly the requirement that a party seeking reasons gives notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages.
7. The objective is obvious: the expeditious disposal of taxation disputes. Thus compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest. The provisions of Article 159 (2) (d) of the Constitution were not intended to overthrow procedural or technical requirements, but to guard against “undue regard” to procedural technicalities in the administration of justice.
8. In this instance the requirements of Paragraph 11 of the Remuneration Order serve a clear purpose and have an important place in taxation disputes as stated above. There is no reason demonstrated as to why the Applicant herein should be exempted from the requirements. To proceed with the Reference without the benefit of considered reasons for the ruling by the taxing master, the parties and indeed the court may have to engage in the unenviable and unnecessary task of guess work and speculation as to the actual reasons behind the taxation decision. That is undesirable and inimical to the administration of justice.
9. For all these reasons I do agree with the Respondents’ submissions that the present Reference was filed prematurely and is incompetent in absence of the taxing master’s reasons. I do therefore strike out the Reference with costs to the Respondents.
Delivered and signed at Naivasha on this 10th day of November, 2017.
In the presence of:-
For the Applicant - absent
For the Respondent – absent
C/C – Barasa
C. MEOLI
JUDGE