Kariuki & 16 others v Kenya Agricultural Research Institute (Petition 2 of 2013)  KEELRC 110 (KLR) (26 January 2023) (Ruling)
Neutral citation:  KEELRC 110 (KLR)
Republic of Kenya
Petition 2 of 2013
HS Wasilwa, J
January 26, 2023
Peter Wambugu Kariuki & 16 others
Kenya Agricultural Research Institute
1.This ruling is in respect of respondent’s preliminary objection dated September 26, 2022, which came out as follows; -a.The bill of costs is filed not in the original court file where the proceedings were conducted.b.This court in a ruling delivered on January 23, 2020, did dismiss the petitioner’s application that had sought that taxation be conducted in a different court file as opposed to the original court file.c.The said court ruling has not been set aside to date.d.The bill of costs herein as long as it is filed not in the original court file is contemptuous of the court orders of January 23, 2020 so as to direct this honourable court sitting as a taxing officer of the jurisdiction to preside over and or determine such proceedings.
2.The preliminary objection is opposed by the petitioner who filed a replying affidavit sworn on October 17, 2022 by Wilfred Nyaundi Konosi, the advocate for the petitioner. In the affidavit, the deponent avers that the bill of costs was filed in a reconstructed file in line with the ruling delivered by the court on January 23, 2020 in Nakuru ELRC Miscellaneous Application no 17 of 2019 because the original file could not be traced.
3.He stated that the orders in the application of October 9, 2019 sought for the reconstruction of the file and for it to be merged with the skeleton file and stored in a strong room.
4.It was his averments that the application of October 9, 2019 was not dismissed but rather was termed premature because the issues raise was to be undertaken by the Registrar and the Deputy Registrar.
5.It was his case that the Deputy Registrar of this court tried tracing the original file to no avail informing her decision to open a skeleton file and for the construction of the file. Therefore, that there is nothing in the orders of January 23, 2020 that needs to be set aside.
6.The affiant states that this matter was concluded way back in 2013 and the attempt by the applicant to overturn the decision of the court and review the decision of the appellate court was thwarted. Thus the application herein is an attempt by the applicant to further delay the finalization of the case herein.
7.He stated also that the preliminary objection does not raise any points of law and therefore should be dismissed to pave way for the finalization of the taxation of the petitioner’s costs.
8.The preliminary objection was disposed of by way of written submissions, with the applicant filling on the December 5, 2022 and the respondent on the December 15, 2022.
9.The applicant submitted by giving the definition of preliminary objection as stated in the case of George Otieno Gache & Another v Judith Akinyi Bonyo & 5 others  eklr where the court held that;
10.On that basis the applicant submitted that the facts as laid out are not controverted because the bill of costs is not filed in the original file. It was argued that the petitioner’s application seeking to open a skeleton file was dismissed in the ruling of January 23, 2020, which orders have not been set aside or reviewed. It was argued that, the fact that the bill of costs was filed in a skeleton file before the court gave green light to open a skeleton file, rendered the bill of costs null and void. It was further argued that the filling of the bill of costs in the skeleton file before following due process stated by the court was an illegality and in violation of the direction given by the court in its ruling. In this they relied on the case of Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning and 3 others  eklr where the court held that;According to Black's Law Dictionary;In Halsbury's Laws of England it is stated:-In book The Law of Contempt, learned authors Nigel Lowe & Brenda Sufrin state a follows:-"Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honoured unless and until they are set aside. Furthermore it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside."
11.Also in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another, Ibrahim J (as he then was) stated as follows: -
12.Similarly, that the bill of costs was filed on November 7, 2019, which was before the ruling of the court was rendered, therefore that the bill of costs was irregular and should be declared null and void. It was argued further that to allow the bill of costs to lie would be condoning an illegality. The Applicant hence urged this court to find the filling of the bill of costs to be contemptuous of the ruling and orders of the court and strike out with costs.
Petitioner/ Respondent’s Submissions.
13.The petitioner submitted from the onset that judgement in this matter was delivered on May 3, 2013 in favour of the petitioners who were also awarded costs of the petition. Upon the award the respondent/ applicant herein filed Nakuru Civil appeal no 315 of 2015, together with an application which stayed execution till the appeal was heard and determined. When the appeal and subsequently review was determined the petitioners sought to tax their bill of costs but the original court file would not be traced, prompting the petitioners to file Miscellaneous Application no 17 of 2019 seeking an order for the opening of a skeleton file and also sought leave to reconstruct the court file. The court ruled on January 23, 2020 and laid down the steps to be taken before opening a skeleton file and directed the Deputy Registrar to attend to those steps within 21 days. It was argued that the aforementioned steps were followed but the file could not be traced, therefore that the petitioner only filed its Bill of costs on the skeleton file because the original file could not be traced.
14.It was submitted that the application herein is used as a delay tactics in total violation of the expectation provided for under section 3 of the Employment Act, which enjoins this court to expeditiously deal with matter.
15.It was also argued that the preliminary objection does not raise pure points of law as was expressly stated in Mukisa Biscuits Manufacturing Co Ltd West End Distributors Ltd (1969) EA 696 in the following terms:-Further Sir Charles New Newbold, JA stated that:-
16.Accordingly, that there is no law which requires that a bill of costs be taxed in the original file. If a file cannot be traced, it is permissible to tax the bill of costs in a skeleton file. Therefore, that the preliminary objection is not merited and should be dismissed.
17.I have examined the averments of the parties herein. The applicants herein filed a preliminary objection on the taxation currently before the taxing master seeking that the taxation be halted as the application for taxation was filed in a miscellaneous application file as opposed to the main file where the cause was heard and determined.
18.The applicants aver that this court ordered taxation to be filed on the original file by its order of January 23, 2020 in Misc 17/2019.
19.The applicants have not exhibited any order as alleged before this court.
20.There is also no law that provides that taxation must be filed in the cause’s original file. In my view, the application by the applicant is based on a technicality as it were meant to derail the conclusion of this matter.
21.The preliminary objection is found to be without merit and is therefore dismissed.
22.Costs to the respondents.
RULING DELIVERED VIRTUALLY THIS 26TH DAY OF JANUARY, 2023.HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:-Ngethe holding brief for Milimo for respondents - presentEkesa holding brief for Konosi for petitioners – presentCourt Assistant – Fred