Nganda & another v Makau & 3 others (Environment & Land Case 75 of 2017)  KEELC 15268 (KLR) (7 December 2022) (Ruling)
Neutral citation:  KEELC 15268 (KLR)
Republic of Kenya
Environment & Land Case 75 of 2017
TW Murigi, J
December 7, 2022
John Sila Nganda
John Kyalo Mutua
Alfred Muema Makau
National Land Commission
Director of Land Adjudication and and Settlement
Permanent Secretary Ministry of Lands, Housing and Urban Settlement
1.By a notice of motion dated March 28, 2022 brought pursuant to the provisions of article 159 (2) (d) of the Constitution, sections 3A and 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules the applicant seeks the following orders:-.1.That this honourable court be pleased to review and vacate the order entered by honourable Otieno J on March 7, 2022 taxing the bill at Kshs 90,375/=.2.That the honourable court be pleased to allow the submissions of the applicant be placed on record.3.That the cost of this application be provided for.
2.The application is premised on the grounds appearing on its face together with the supporting affidavit sworn by Eric Musyoka advocate on the even date.
3.A summary of the grounds and the averments is that the court taxed this matter without hearing the 1st defendant/applicant. That the bill of costs was filed in court on December 10, 2021 and the applicant was served on February 7, 2022. That on February 28, 2022 the applicant’s advocate was still seeking instructions when the matter was listed for hearing.
4.Counsel averred that on the said hearing date, the applicant’s advocate tried to login to the proceedings through the court link but was unsuccessful. That after seeking to file its submissions, the applicant’s advocate was informed that the court file was with the honourable magistrate. Counsel argued that it is in the interest of fairness that before taxation is done, the submissions of the applicant be considered.
5.Opposing the application, the plaintiff/respondent vide his replying affidavit filed in court on April 26, 2022, averred that the application is time-barred having been filed after an inordinate delay. The respondent argued that the applicant’s advocate was fully aware of the hearing date but failed and or refused to participate in the hearing on February 28, 2022. He argued that no proof has been provided to support the assertion that the applicant’s advocate tried to log in but was unsuccessful. That after being served with the ruling notice on March 4, 2022, the ruling was delivered on March 7, 2022. The respondent averred that the applicant waited a further 21 days to file the instant application.
6.He further averred that the application offends the mandatory provisions of the law and that the applicant is using dubious means to deprive the respondents the fruits of their judgment. He went on to state that the applicant has not demonstrated the threshold for grant of the orders sought.
7.The application was canvassed by way of written submissions.
THE appLICANT’S SUBMISSION
8.The applicant’s submissions were filed in court on August 2, 2022. Counsel for the applicant reiterated the contents of the supporting affidavit to the application. It was submitted that the bill of costs herein was taxed without hearing the applicant which is in violation of the Constitution.
The Respondent’s Submissions
9.The respondent’s submissions were filed in court on July 18, 2022. Counsel for the respondent submitted that the application is an abuse of the court process as it offends the provisions of paragraph 11 of the Advocates Remuneration Order. Counsel argued that the applicant ought to have filed a reference as it is the proper legal procedure for challenging the decision of the taxation officer.
10.Counsel further submitted that under order 45 rule 1 of the Civil Procedure Rules, on which the instant application is premised, the law requires that a review application should be made before the court which delivered the decision. It was also submitted that there was nothing for this court to review because the applicant had not attached the decision he is challenging to his application.
11.The respondent relied on the following authorities to buttress his submissions: -1.Republic v University of Nairobi & another ex parte Nasibwa Wakenya Moses  eKLR;2.Executive Committee Chelimo Plot Owners Welfare Group & 288 others v Langat Joel & 4 others (Sued as the Management Committee of Chelimo Squatters Group) .
ANALYSIS AND DETERMINATION
12.Having considered the application, affidavits and the rival submissions, I find that the only issue that arises for determination is whether the the taxing master committed any errors of principle while taxing the bill of costs.
13.The procedure to be followed when a party is dissatisfied with a decision of a taxing officer is anchored on paragraph 11 of the Advocates (Remuneration) Order, 1962 which provides as follows: -
14.In Machira & Co advocates v Arthur K Magugu & Another  eKLR, the Court of Appeal aptly held as follows;
15.Similarly, in Donholm Rahisi Stores (suing as a firm) v East Africa Portland Cement Limited  eKLR, HPG Waweru J held as follows;
16.The said principles were also re-affirmed by the Court of Appeal in Joreth Limited v Kigano and Associates  1 EA 92. As follows:-
17.The 1st defendant is aggrieved by the decision of the taxing master on the grounds that the taxing master failed to consider the 1st defendant’s submission contrary. The 1st defendant argued that the taxing officer ought to have considered his submissions before taxing the bill of costs. He maintains that the failure to consider his submissions was contrary to the constitutional right to be heard.
18.Before the court interferes with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong. The court can interfere if it is proved that the amount taxed was manifestly excessive or low, or where there is proof that the taxing master followed a wrong principle in reaching her decision.
19.In the existing circumstances, what is before this court is not a proper reference for the court to interfere in with the jurisdiction of a taxation court. I find that an order by the taxing master concerning taxation of a bill of costs can only be challenged before a judge by way of a reference initiated by way of a chamber summons as required by the provisions of paragraph 11(2) of the Advocates Remuneration Order and not by way of a review under the provisions of order 45 rules 1 and 2 of the Civil Procedure Rules.
20.As it stands, the applicant herein has not invoked the proper legal provisions in challenging the Taxing officer’s decision under prayer 1 of the application.
21.The present application is premised under article 159(2) (d) of the Constitution, section 3A of the Civil Procedure Act amongst other provisions of the law.
22.In the case of Abok James Odera T/A AJ Odera & Associates v John Patrick Machira T/A Machira & Company advocates (2013) eKLR, citing with approval the case and decision of Kariuki Networks Ltd & Another v Dally Figgis advocates, Civil application No Nai 293 of 2009) the Court of appeal held that:
23.From the above findings which is binding to this court, it is clear that the oxygen principle and/or article 159(2) (d) of the Constitution does not oust the jurisdiction of this court to determine the application when there are clear procedures under the Advocates Act.
24.In the end, I find that the application dated March 28, 2022 is fatally defective and the same is dismissed with costs to the plaintiff/respondent.
HON T MURIGIJudgeRULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 7TH DAY OF DECEMBER, 2022.IN THE PRESENCE OF: -Court Assistant – Mr KwemboiMuthama holding brief for Mutua Makau for the respondent.