Wamanda & 2 others v Egoli Estates Limited & another (Environment and Land Case Civil Suit 103 of 2020)  KEELC 15124 (KLR) (24 November 2022) (Ruling)
Neutral citation:  KEELC 15124 (KLR)
Republic of Kenya
Environment and Land Case Civil Suit 103 of 2020
OA Angote, J
November 24, 2022
Cecilia Njeri Wamanda
Blue Bill Enterprises Limited
Rawja Company Limited
Egoli Estates Limited
R. J Varsani Enterprises Limited
1.Vide Chamber Summons dated 11th November, 2021, the Applicant seeks the following reliefs:
2.The application is based on the grounds on the face of the Motion and is supported by the Affidavit of Peter Magwa of an even date. It was his deposition that the Taxing Master erroneously handled the question of instruction fees by applying the price of the construction agreement between the 1st and 2nd Defendants as the subject matter.
3.It is the Applicant’s case that the subject of the suit was the unlawful and irregular way the construction was being undertaken by the Defendants and in relation to the 3rd Plaintiff, breach of contract by the 1st Defendant; that in using the construction agreement as a basis for instruction fees, the Taxing officer took into account a wrong factor and that even if the assessment was not based on a wrong factor, the sum of Kshs 2,320,732.92 is inordinately high as to manifest an error of principle.
4.According to the Deponent, the Advocates Remuneration Order provides for Kshs 75,000 as the minimum chargeable instruction fees and allowing Kshs 2,320,732.92 as instruction fees would be allowing 30 times the prescribed minimum fees and that there was nothing complex or unique about the main suit to justify the high instruction fees taking into account the fact that the suit was withdrawn before it proceeded for hearing.
5.It was deponed that the Plaintiffs had filed the suit in good faith on the basis that no checks had been undertaken by the relevant authorities as a prerequisite for the abstraction of water and was constrained to take the decision to litigate; and that as soon as they became aware that the Defendants had obtained the requisite approvals, they withdrew the suit.
6.In response to the Chamber Summons, the 1st and 2nd Defendants/Respondents filed Grounds of Opposition in which they stated that the Applicants’ Chamber Summons is fatally defective because its Advocates are not properly on record having failed to comply with the express provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010 and that the Application offends paragraph 11 of the Advocates Remuneration order as no Notice of Objection in writing was given to the Taxing Officer specifying the items objected to.
7.It was averred by the Defendants that the application is incompetent as there is no prayer for extension of time within which to file the Notice of Objection and Reference against the decision of the Taxing Officer delivered on 28th October, 2021 and that the 1st and 2nd Defendants’ Bill of Costs dated 10th May, 2021 was un-opposed by the 3rd Plaintiff hence the current Application is a back door attempt to challenge the same without complying with the provisions of the law.
8.According to the Defendants, the delay in preferring a challenge to the Ruling delivered on 28th October, 2021 has not been explained.
9.Vide a Supplementary Affidavit dated 14th December, 2021, the 3rd Plaintiff/Applicant reiterated the contents of his supporting affidavit of 11th November, 2021 and deponed that the provisions of the Civil Procedure Rules are inapplicable because the main suit is still on-going and that in any event, he has obtained consent from his previous advocates which consent has been filed with the Affidavit.
Analysis and Determination
10.Having considered the application, Affidavits and submissions herein, the issue that arise for determination are;
11.The 1st and 2nd Defendants contend that the application is fatally defective having been filed by counsel who is not properly on record. They assert that Order 9 Rule 9 and 10 of the Civil Procedure Rules is clear that an advocate or party who wants to come on record post judgment must seek leave of the court by way of a formal application.
12.In response, the Applicant asserts that the matter is yet to proceed for hearing and that nonetheless, the Applicant has obtained and duly filed the requisite consent. The Applicant has urged that the court should in the spirit of Article 159(2) of the Constitution deal with the application on substantive grounds rather than dismiss it on a procedural technicality especially as the Respondents have not indicated what prejudice they stand to suffer.
13.The Court has considered the record. The present suit was instituted sometime in June 2020. On 30th September, 2020, the 3rd Plaintiff filed a Notice of Withdrawal of suit as against the Defendants pursuant to Order 25 Rule 3 of the Civil Procedure Rules. After the withdrawal, the Defendants vide its letter of 26th January, 2021 and pursuant to the provisions of Order 25 Rule 3 of the Civil Procedure Rules sought a judgment on costs. The said provision states;
14.The judgment sought was duly entered by the Deputy Registrar on the 4th March, 2021 and is for all intents a final determination of the suit as between the 3rd Plaintiff and the Defendants.
15.At the time of the institution of the suit and withdrawal of the suit, the Plaintiffs were represented by the firm of Naikuni Ngaah & Company Advocates. The present application, coming after entry of judgment, has been instituted by the firm of Mugeria, Lempaa and Kariuki Advocates LLP. Was the proper procedure for coming on record post judgment followed?
16.The law in this respect is provided for under Order 9 Rule 9 the Civil Procedure Rules which provides;
17.Order 9, rule 10 provides;
18.A reading of the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be effected, there must be an order of the court upon application, with notice to all parties, or upon a consent filed between the outgoing advocate and the proposed incoming advocate.
19.As correctly stated by the Respondents, the essence of Order 9 Rule 9 of the Civil Procedure Rule is to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him with another advocate of file a notice to act in person with a view or avoiding to pay fees.
20.The Court has considered the affidavit evidence, particularly the notice of change of advocates annexed to the supplementary affidavit. It shows that a Notice of Change of Advocates was duly signed and consented to by the Applicant’s previous counsel on 14th December, 2021. The present Application was filed on 11th November, 2021 and strictly speaking, the present firm of Mugeria, Lempaa and Kariuki Advocates LLP was not properly on record at the time they filed the application.
21.The effect of late or non-filing of a Notice of Change is provided under the proviso to Order 9 Rule 5 which reads as follows:
22.While it may well be said that any action by counsel who was not properly on record constitutes a nullity, this court is inclined to take a different approach. The filing of a Notice of Change is to notify the other parties as well as the court that there has been a change of advocates in a matter.
23.While it is prudent for parties to always follow procedure, in this case, this mis-step is procedural and does not go to the root of the matter. More importantly, no prejudice has been occasioned to the Respondents. That being the case, and the previous advocate having consented to the filing of the notice of change advocates unreservedly, the court is not convinced that the late filing of the consent warrants the extreme measure of locking out the Applicant. This is the position that the Court of Appeal took in Tobias M. Wafubwa vs Ben Butali  eKLR:
24.This Court is therefore inclined to take the same path. The Court therefore finds that the firm of Mugeria, Lempaa and Kariuki are entitled to prosecute this application on behalf of the Applicants.
25.The 3rd Plaintiff/Applicant is seeking the court’s leave to enlarge the time fixed for lodging of a Reference to allow the prosecution of prayer 4 which seeks a review of the sum allowed as Instruction Fees and Getting Up Fees.
26.Paragraph 11 (1) and (2) of the 2014 ARO spells out the time within which to file an objection and provides as follows;
27.It is noted that paragraph 11 (1) (2) of the Advocates Remuneration Order does not speak to the relevant factors that the Court should consider when exercising its discretion on whether or not an extension of time should be granted. This is a discretionary power granted to the Court by the provisions of sections 1 (A), 1(B),3(A), of the Civil Procedure Rules. In County Executive of Kisumu vs County Government of Kisumu & 8 others  eKLR the Supreme Court, laid out the general principles governing extension of time thus:-
28.As aforesaid, the length of the delay and the reasons for non-compliance of the time lines are crucial considerations on whether or not to exercise the discretion of the Court.
29.As to what constitutes delay, the same has been held to be a matter of fact. Visram J (as he then was) stated thus in the case of Agip (Kenya) Limited vs Highlands Tyres Limited  KLR 630:
30.In the instant case, it is not in dispute that a Reference was not filed within the stipulated time. The Ruling having been issued on 28th October, 2021, the Applicant had 14 days within which to file an objection to the same. This means that the objection ought to have been filed on or before 10th November, 2021. The filing of the Application on the 11th November, 2021 constitutes a one day delay.
31.This delay has been explained by the Applicant who has stated that the same was occasioned by a three day delay in counsel communicating the decision to them. This Court finds that the delay is not unreasonable and the explanation satisfactory. The Court will there oblige and extend time in favor of the applicant to file a Reference under paragraph 11 (1) (2) of the Advocates Remuneration Order.
32.The next issue in contention is whether or not the failure to file a notice of objection is fatal to the Reference. It is undisputed that no objection has been filed pursuant to the provisions of para 11(1) of the ARO. The Applicant avers that it is not necessary while the Respondents contend that it is mandatory and that the Applicant cannot purport to file a Reference before notifying the Taxing Officer in writing.
33.The procedure for the challenge of the results of taxation is provided under Paragraph 11 of the Advocates (Remuneration) Order which provides that:
34.Paragraph 11 (2) of the Advocates Remuneration Order provides as follows;
35.The purpose of the notice to is to elicit reasons from the taxing officer. In this case, there was a written Ruling. Having considered the same, it is quite detailed and clearly sets out the reasons of the Taxing master in assessing the fees. That being the case, it would be superfluous for the Applicant to ask for reasons which are clearly elaborated in the ruling. This court agrees with the rationale in Evans M. Gakuu & 66 Others vs National Bank of Kenya Limited & 8 Others, Hccc No. 287 of 2009, where Odunga J. held as follows;
36.The Court aligns itself to this position and finds that the failure to give a written notice of objection is not fatal to the Application.
37.The legal parameters within which the Court can interfere with the taxing master’s decision are well settled. In First American Bank of Kenya vs Shah and others  E.A.L.R 64 at 69, Ringera J (as he then was) delivered himself thus;
38.More recently, the principles were outlined by Odunga J in the case of Republic vs Commissioner of Domestic Taxes Ex-Parte Ukwala Supermarket Limited & 2 others  eKLR wherein he stated as follows;
39.Similarly, the Ugandan Supreme Court in Bank of Uganda vs Banco Arabe Espanol SC Civil Application No. 23 of 1999 (Mulenga JSC) stated:-
40.In the present case, the Applicant seeks to impugn the assessment on instruction and getting up fees. He asserts that there was an error in principle as the Taxing Officer based his assessment on the sum of Kshs 192,954,037 which was the contractual sum of the contract between the 1st and 2nd Defendants; and that the said sum was not the subject matter of the suit.
41.It is trite that instruction fees is to be determined from the value of the subject matter of a suit. It is also trite that the value of the subject matter of a suit is to be ascertained from the pleadings, judgment or settlement.
42.Where the value of the subject matter cannot be ascertained from the pleadings, judgment or settlement, the taxing officer has discretion to assess instruction fees taking into account various factors. This was affirmed by the Court of Appeal in Peter Muthoka & Another vs Ochieng & 3 others NRB CA Civil Appeal No. 328 of 2017  eKLR which, while expounding on the principles in Joreth Ltd vs Kigano & AssociateseKLR set down the proper basis of taxing the instruction fees as follows;
43.The Court has considered the record. The Plaintiffs instituted this suit on 9th June, 2020 seeking inter-alia permanent injunctive orders restraining the Defendants from excavation, construction of multi dwelling 66 residential apartments and erecting any structures on L.R Dagoretti/Riruta/3094 and 3096(suit property), a declaration that the intended action by the 1st and 2nd Defendants in continuing with the excavation and construction of the multi-dwelling apartments are unprocedural and irregular and an order stopping and preventing the 1st and 2nd Defendants from drilling, constructing and abstracting any water and its resources from the suit property. The suit was thereafter withdrawn before it proceeded for hearing.
44.It is clear from the foregoing that the Plaintiffs’ claim was essentially with respect to construction activities undertaken by the 1st and 2nd Defendants and their impact on his adjoining property. The 3rd Plaintiff was also concerned that the Defendants had not obtained the requisite approvals from NEMA and the construction project was irregular.
45.While the sum of the contract between the 1st and 2nd Defendants is an important consideration in as far as it speaks to the nature and complexity of the suit, the Court is not convinced that the same constitutes the subject matter of the suit. The same was clearly unascertainable, and was only known to the Defendants. The instruction fees was therefore based on an erroneous figure.
46.The getting up fees having been premised on the erroneous instruction fees cannot stand. That being so, it is the finding of the Court that there was an error in principle by the Taxing Officer in identifying the subject matter of the suit leading to an erroneous assessment. Consequently, the court finds that the Application dated 11th November, 2021 is meritorious and proceeds to make the following orders;a.The Taxing Master’s Ruling delivered on 28th October, 2021 be and is hereby set aside.b.The Bill of Costs dated 10th May, 2021 shall be remitted to another Taxing Master for taxation.c.Each party bear his/its own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 24TH DAY OF NOVEMBER, 2022.O. A. ANGOTEJUDGEIn the presence of;Mr. Otieno for 1st and 2nd DefendantsMr. Njoroge for PlaintiffCourt Asssitant - June