Kieng & another v Karemi & 5 others (Miscellaneous Civil Application E039 of 2022) [2024] KEHC 698 (KLR) (31 January 2024) (Ruling)
Neutral citation:
[2024] KEHC 698 (KLR)
Republic of Kenya
Miscellaneous Civil Application E039 of 2022
EM Muriithi, J
January 31, 2024
Between
Koskei Kieng
1st Applicant
Wu Xiang
2nd Applicant
and
Eva Karemi
1st Respondent
Rebecca Mwonja Lumiri
2nd Respondent
Judy Lebute
3rd Respondent
Tonny Gitonga
4th Respondent
Kenfrey Mwiti Mbae
5th Respondent
John Lumiri
6th Respondent
Ruling
1.By a Notice of Motion under certificate of urgency dated 23rd June 2022 brought under Order 21 Rule 9 (2), Order 45 Rules 1 & 2 of the Civil Procedure Rules, Section 3A and 80 of the Civil Procedure Act and other enabling provisions of the law, the Applicants seek that, “This Court does grant leave to the Applicants to file an application for reference for review out of time on the certificate of costs dated 13th October, 2020.”
2.The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Mwika R, the Applicants’ advocate sworn on even date. He contends the ruling of 24/1/2022 was delivered without any notice to them, and they only learnt of it vide a letter from the Respondents dated 8/6/2022. There was an error apparent in the certificate of costs thus necessitating the Applicants to file a reference. The delay in filing the reference was not deliberate but inadvertent as it was occasioned by the fact that the Court did not give notice of the delivery of the ruling. It is in the interest of justice that the application is allowed so as to allow re-taxing of the bill of costs to obviate a miscarriage of just and curb unjust enrichment by the Advocate/Respondents. No prejudice whatsoever will be occasioned on the Respondents if the prayers sought are granted.
3.The Respondents opposed the application vide a replying affidavit sworn by Vivian Loice Aketch, their advocate on 1/11/2022. She contends the ruling on costs and the certificate issued on 13/10/2020, were the basis upon which the Applicants applied for review before the trial court. There has been an appeal in this matter but the Applicants did not raise the issue of the Respondents being awarded costs and therefore she urges the court to dismiss the application with costs. It has been 1 year 10 months since the taxing master issued the ruling, and the Applicants’ conduct in this whole affair has been mischievous and in bad faith.
Submissions
4.The application was canvassed by way of written submissions which were respectively filed on 4/12/2023 and 30/11/2023.
5.The Applicants submit that taxation of bill of costs ought to be ventilated by way of reference to the judge, and cite Gathoni Supeyo v Yano t/a Yano & Co. Advocates (2019) eKLR and Paul Wanjohi Mathenge v Duncan Gichane Mathenge (2013) eKLR. They relied on Salat v Independent Electoral & Boundaries Commission & 7 Others (2014) eKLR on the underlying principles a court should consider while exercising the discretion to extend time.
6.The Respondents urge that the long delay of 21 months has been not been explained, and thus unmitigated and inexcusable, and cite Machira & Co. Advocates v Arthur K. Magugu & Another [2012] eKLR, Evans Gaturu Thiga v Kenya Commercial Bank Limited [2012] eKLR, Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limited (2) [2006] EA 5 and Twiga Motor Limited v Hon Dalmas Otieno Anyango [2015] eKLR. They urge that Rule 62 (2) of the Advocates Remuneration Rules requires the taxing master to disallow costs unnecessarily or improperly incurred when the same advocate is employed for 2 or more defendants and separate pleadings are delivered, and cite Omulele & Tollo Advocates v Mount Holdings Limited [2016] eKLR, Shadrack Waigwa Ndung’u & 51 Others v Nyeri County Government & 3 Others [2018] eKLR, D. Njogu & Co. Advocates v Panafcon Engineering Ltd [2006] eKLR and Anguruman Limited v Kenya Civil Aviation Authority & 3 Others [2014] eKLR.
Analysis and Determination
7.The principles for consideration on an application for extension of time to appeal out of time are that, the power is discretionary but the Applicants must prove to the satisfaction of the court that the delay is not inordinate, reasons for delay are plausible, that the appeal is arguable and not frivolous and that the respondent will not be unduly prejudiced by the order being made. See Nicholas Kiptoo Korir Arap Salt v Independent Electoral & Boundaries Commission & 7 others [2014] eKLR.
8.In Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR the Court of Appeal (Otieno-Odek JA) observed that;-
9.Dissatisfied with the certificate of costs issued on 12/10/2020, the Applicants moved the trial court seeking review thereof, and by its ruling of 24/1/2022, the trial court said:
10.The time frame within which to file a reference is set out under Rule 11 of the Advocates (Remuneration) Order as follows:
11.After the issuance of the certificate of costs on 13/10/2020, the Applicants were required to give notice in writing to the taxing master of the items of taxation to which they object, within 14 days. That was not done. They instead filed the application for review in the trial court dated 8/12/2020 which was dismissed by the ruling of 24/1/2022 in the absence of the parties.
12.The application was filed on 27/6/2022 where the Applicants contend that the ruling of 24/1/2022 was belatedly brought to their attention on 13/6/2022. The delay in filing the reference is attributed to the trial court’s failure to give the Applicants’ notice of the delivery of the ruling of 24/1/2022.
13.This court accepts that while the delay from when the certificate of costs was issued on 13/10/2020 to the filing of the instant application on 27/6/2022 is manifestly inordinate, the reason thereof has been satisfactorily explained.
Orders
14.Accordingly, for the reasons set out above, in the exercise of its inherent powers under Sections 1 (A), 1(B) and 3(A) of the Civil Procedure Act, this court allows the application dated 23/6/2022 in the following terms:1.The Applicants are granted leave of court to file their reference out of time.2.The Reference shall be filed within 14 days from the date of this ruling.3.In terms of Order 50 Rule 6 of the Civil Procedure Rules, the applicant shall pay the costs of the application to the Respondents to be agreed or taxed in default of agreement.Order accordingly.
DATED AND DELIVERED THIS 31ST DAY OF JANUARY, 2024.EDWARD M. MURIITHIJUDGEAppearances:Ms. Mukami for the Applicants.Ms. Aketch for Respondent.