Case ID:170334

Prabhulal Tejpal Haria & another v Pravinshandra Meghji Dodhia & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Case 317of 2007

Parties:

Prabhulal Tejpal Haria & Manju Prabhulal Haria v Pravinshandra Meghji Dodhia, Rekha Pravinchandra Dodhia & Bhavisha Properties Limited

Date Delivered:

22 Jan 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

Prabhulal Tejpal Haria & another v Pravinshandra Meghji Dodhia & 2 others [2021] eKLR

Court Division:

Civil

County:

Nairobi

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 317 OF 2007

PRABHULAL TEJPAL HARIA ......................................1

ST

PLAINTIFF/APPLICANT

MRS. MANJU PRABHULAL HARIA...........................2

ND

PLAINTIFF/APPLICANT

V E R S U S

MR. PRAVINSHANDRA MEGHJI DODHIA........1

ST

DEFENDANT/RESPONDENT

MRS. REKHA PRAVINCHANDRA DODHIA......2

ND

DEFENDANT/RESPONDENT

BHAVISHA PROPERTIES LIMITED..................3

RD

DEFENDANT/RESPONDENT

RULING

(1) Before this Court is the Chamber Summons dated

16

th

September 2019

by which the Plaintiff/Applicant seeks the following orders:-

1.

THAT

this Honourable Court be pleased to grant leave to the Applicant to file a reference out of time against the taxation made by the Deputy Registrar of this Honourable Court on 11

th

June 2009.

2.

THAT

the costs of and incidental to this application abide the result of the said reference.

(2) The application which was premised upon

Order 50 Rule 5

of the

Civil Procedure Rules, Rule 11(1)(2) and (4)

of the

Advocates (Regulations) Remuneration Order and Sections 1A, 1B

and

3A

of the

Civil Procedure Act,

was supported by the Affidavit dated

16

th

September 2019

sworn by

GIBSON KAMAU KURIA

and Advocate of the High Court of Kenya.

(3) The Respondent opposed the application and in doing so relied on the Replying Affidavit dated

5

th

December, 2019

sworn by

DANIEL KIRAGU

an Advocate of the High Court of Kenya. The application was canvassed by way of written submissions. The Plaintiff/Applicant filed written submissions dated

9

th

March 2020

whilst the Respondents did not file any submissions at all.

ANALYSIS AND DETERMINATION

(4) This application arises from a Ruling delivered on

11

th

June 2019

by

Hon. Elizabeth Tanui

, Deputy Registrar after taxing the Bill of Costs dated

2

nd

August 2017

. The Applicant now seeks leave to file a Reference against that Ruling out of time.

(5)

Rule 11(1) of the Advocates Remuneration (Amendment) Order

provides as follows:-

“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.”

(6) The Applicant whilst conceding that the fourteen (14) days provided within which to file an objection has expired submits that they were unable to act as no copy of the Ruling was availed to them until

15

th

August 2019

. That it was not until

17

th

July 2019

that the Hon. Deputy Registrar through a letter dated

15

th

July 2019

gave the reasons for the taxation. The Applicant submits that given that it was not until

15

th

August 2019

that a copy of the Ruling was received by her Advocates, then in line with

Order 11(2)

of the

Advocates Act

, the Reference ought to have been filed within fourteen (14) days of that date.

(7) However I am not persuaded by the submissions of Counsel for the following reasons. It is not in dispute that the Ruling on Taxation was delivered on

11

th

June 2019

. Counsel for the applicant filed a Notice of Objection on

25

th

June 2019

and sought to be furnished with reasons for the decision. By a letter dated

15

th

July 2019

, the Hon. Deputy Registrar indicated that the reasons were contained in the Ruling itself. They thus ought to have filed the Reference within

fourteen (14) days

of the date when the reasons were furnished ie or or about

30

th

August 2019

.

(8) In the case of

EVANS GATURU ADVOCATE –VS- KENYA COMMERCIAL BANK LIMITED [2012]eKLR

, it was held as follows:-

“

In most cases, the court is aware that, taxing officers, in their decisions on taxation do deliver comprehensive rulings which are self-contained thus obviating the necessity to furnish fresh reasons, thereafter. In such circumstances it would be foolhardy to expect the taxing officer to redraft another “ruling” containing the reasons. However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons

. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference. Otherwise mere adherence to the procedure may lead to absurd results if the advocate was to continue waiting for reasons, as it happened in the case of

Kerandi Manduku & Company vs. Gathecha Holdings Limited Nairobi (Milimani) HCMA No. 202 of 2005,

where the taxing officer had left the judiciary.

Where reasons are contained in the decision, I share the view that to file the reference more than 14 days after the delivery of the same would render the reference incompetent.

” [own emphasis]

(9) Similarly in

AHMED NASIR ABDIKADIR & CO. ADVOCATES –VS- NATIONAL BANK OF KENYA LTD [2006]IE.A

it was held:-

“Although Rule 11 (2) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the Taxing Officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons.

Where the reasons for the taxation on the disputed items in the Bill are already contained in the considered Ruling, there is no need to seek for further reasons simply because the unfortunate wording of subrule (2) of Rule II of the Advocates Remuneration Order demands so

. The said Rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered Ruling.” [own emphasis]

(10) Therefore the Applicants had fourteen (14) days from

17

th

July 2019

to file a reference. They failed to do so. This application was not filed until

September 2019

almost sixty (60) days

after

the Deputy Registrar had given the reasons for her decision. No explanation is given for this delay. In my view the Applicant is guilty of laches. I find no merit in this application. The same is dismissed in its entirety with costs to the Respondent.

Dated in Nairobi this 22

ND

day of JANUARY, 2021.

............................................

MAUREEN A. ODERO

JUDGE