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The Applicant is the Attorney General of the
Republic of Kenya. He is represented by Mr. Antony Oteng’oOmbwayo Senior
Principal Litigation Counsel, Attorney General’s Chambers, Kenya.
The Respondents are Hon. Peter Anyang – Nyong’o and ten others. They are
represented by Mr. T. J. Kajwang and Ms Judith Sijeny of Kilonzo& Co.
Advocates.
This is an application to enlarge time brought under Rule 4 of the Rules of
this Court.
BACKGROUND
[1] The facts which gave rise to this application are that this Court, in
its judgment of 30th March 2007 in Reference No.1 of 2006, ordered that the
claimants (who are the respondents in the present application) “shall have
costs of the Reference to be borne by the 1st Respondent and to be taxed by
the Registrar taking into account that a single applicant could have
presented the reference.”
[2] Subsequently the Bill of Costs was lodged and taxed. The Ruling on
Taxation was delivered on the 19th December 2008 by the Registrar of this
Court, as Taxing Officer by virtue of Rule 113 of the Rules of this Court.
[3] On the 6th January 2009 the Attorney General of the Republic of Kenya,
the applicant in this application, communicated the contents of the Taxation
Ruling to the Clerk of the National Assembly of Kenya, advised the Clerk on
the available options at law and sought instructions on the way forward.
[4] On the dates of 12th and 22nd January 2009 the claimants, through
Kilonzo and co. Advocates, sent written demands to the Attorney General and
the Clerk to the National Assembly, respectively, seeking amicable
settlement of the decretal sum or else recovery proceedings would issue.
[5] On the 3rd April 2009 the applicant filed the present application to
enlarge time so he could file, out of time, a Reference on Taxation under
Rule 114 of the Rules of this Court. Rule 114 provides that a Reference on
Taxation may be made within 14 days. This Reference is sought to be filed
about 90 days after the Ruling on Taxation was delivered hence the
application to extend time.
[6] The application is supported by the affidavit of Senior Principal
Litigation Counsel, Attorney General’s Chambers Antony Oteng’o Ombwayo sworn
on 13th March 2009.
[7] The grounds on which the application is based, as appear in the Notice
of Motion, as well as in Mr. Ombwayo’s affidavit, may be summarized as
follows:-
1) That the application could not be filed in time due to Christmas vacation
that was being observed by the Staff of the East African Court of Justice
and the Registry was not manned,
2) That the delay in filing the application was occasioned by hardship,
3) That consultations between the office of the Attorney General, the Clerk
to the National Assembly of Kenya and the Treasury delayed the filing of the
application,
4) That time be extended due to the public interest in the case,
5) That the Respondents are not persons of mean resources and therefore no
prejudice will be occasioned to them if the extension is granted.
6) That the Reference is merited as the amount awarded by the Court is
excessive and not founded on any legal basis hence the same ought to be
reviewed.
HEARING IN COURT
[8] At the hearing Mr. Ombwayo, for the Applicant, relying on two affidavits
and oral arguments submitted that the two main grounds of this application
are inability to file due to Christmas vacation and inability to file the
application due to tragedies that befell his family necessitating his
personal intervention at home. He also told the Court that there were
consultations between the office of the Attorney General and that of the
Clerk to the National Assembly and the Treasury over this matter which also
delayed the filing of the Reference.
[9] Canvassing the first of the grounds, learned Counsel submitted that it
was within his knowledge that between 15th December and 5th January the
entire staff of the East African Community go on Christmas vacation.
Therefore, he submitted, part of the 14 days expired when the court was on
vacation.
[10] On the second ground Counsel submitted that “after the vacation” on
10th January 2009 his younger brother was attacked by thugs and he had to
travel to his rural home to attend to his treatment as a facilitator. He
told Court that “in the same month of January” another brother of his was
also attacked and again he had to personally intervene back at home. He told
the Court that during that time he could not engage in the preparation of
this application to be brought before the Court.
[11] After his main grounds he raised a few more. On the consultations
ground Counsel submitted that there were some consultations between the
offices of the Attorney General and that of the Clerk to National Assembly
over possible settlement of and who should pay the costs and this led to
some delay in the filing of the Reference.
[12] On the public interest ground, Counsel submitted that since the award
made is to be paid from the consolidated fund, itself public money, the
public in Kenya stands to lose colossal sums of money due to the
inordinately high award and invited the Court to take into account the
greater public interest as opposed to private interest.
[13] He submitted further that the Kenyan public will suffer irreparably if
the money is paid without the Government being able to challenge the taxing
officer’s award.
[14] On prejudice, Counsel specifically argued that the respondents had not
commenced Execution Proceedings as provided by Rule 74 of the Rules of the
Court, order 28 rule 3 of the Civil Procedure Act, Chapter 21 Laws of Kenya
and section 21 of the Government Proceedings Act Chapter 40 of the Laws of
Kenya, and therefore, he argued, it would do them no harm if this extension
is granted because it would not be interrupting any execution process.
[15] On resources of the parties issue Counsel specifically referred to the
1st Claimant in Reference No. 1 of 2006, Prof. Anyang Nyong’o and, matching
him with the “single Claimant” mentioned in the judgment, submitted that he
is a Cabinet Minister who will not suffer any prejudice “as a Cabinet
Minister is not a man of mean resources.”
[16] On the merit of the Reference Counsel submitted that the amount awarded
of 1.3m$ was inordinately high, was not founded on any legal basis and did
not reflect costs for one claimant especially on the instruction fees.
[17] Counsel cited authorities like City Council of Nairobi vs Intercity
Utility Services Ltd (Civil application No.35 of 2007), Samuel Ondiekivs
Samuel Mageto Civil Application No.266 of 200, WasikevsKhisa and Another
Civil Appeal No. NAI 248 of 2003 and WasikevsSwala Civil Application No. NAI,
150 of 1983 to support his submissions that this Court has unfettered
discretion to extend time, that he had put enough material before Court to
enable it exercise this discretion judicially and not capriciously, that
there is sufficient public interest in this case to warrant extension of
time and enable review of the award and that the reference was merited.
[18] Mr. T.J. Kajwang, for the Respondents, relying on the affidavit of
MsSijeny and on oral arguments, opposed the application. He concurred,
though, with Counsel for the Applicant on the matters the Court will
consider in determining extension of time as including length of delay,
explanation of the delay, arguability of the reference, merits of the
reference, prejudice to the other party, public importance of the matter,
general interest of justice, application made in good faith and sufficiency
of the reasons advanced. He did not dispute the length of the delay. He
invited the Court to examine whether the applicant had sufficiently, and in
good faith, explained the delay in filing the application.
[19] First he contended that Counsel was confusing Christmas day, official
holidays, Court vacation and computation of time. He argued that Christmas
day is an official holiday within the meaning of Article 2 of the Rules,
that Court vacation is a vacation determined by the President and published
in the Gazette as provided by Rule 19 and that under Rule 3 periods shall
(b) include official holidays, Sundays and Saturdays and (c) shall not be
suspended during Court vacations. He urged the Court to find that Counsel
for the Applicant had not based his arguments on all or any of the above
rules and therefore had not sufficiently explained his grounds of delay due
to “Christmas vacation.”
[20] On the family tragedies issue Counsel argued that Mr. Ombwayo had not
put anything on record to help him prove the truth of what he was saying. He
enumerated the many unanswered questions around this ground such as which is
the vacation after which the tragedies happened, on which dates did the
attacks happen, when did Mr. Ombwayo travel to his rural home, when did he
return to office, what was the seriousness of the attacks, and what was the
evidence was on record to support what he was saying. Counsel contended that
these are very legitimate questions without whose answers the Court was
unable to determine whether there was sufficient or any explanation on this
ground. Relying on Wasike V. Khisa& Another Civil Appeal No. NA1 248 of 2003
Counsel told Court that it was the applicants duty to provide evidence to
support the grounds of his application to enable the Court to believe the
truth of what he was saying.
[21] On the ground of consultations between the offices of the Attorney
General, the Clerk to the National Assembly and the Treasury learned Counsel
challenged the nature of the said consultations. He invited the Court to
take notice that the Respondents were not party to these consultations and
therefore could not be affected thereby. He also argued that since the
Attorney General already knew the options and merely waited for the Clerk’s
instructions he could not see why it took up to April to file the
application after the Clerk had allegedly responded in February 2009. He
urged Court to find that there is no explanation at all on this ground as
well.
[22] On the ground of public interest around the application Mr. Kajwang
contended that evidence of public interest should be brought before the
Court and should not be an opinion of counsel. He told court that public
interest cannot be on an amount of money awarded to a litigant but on a
policy issue. He argued further that the Ruling on Taxation is a very
private matter unless the Applicant can show the court any law which has
shown that public policy in the community court is such that Partner States
should not be made to pay certain amounts of money upon which the applicants
would base to argue that a decision to award such money is against public
policy.
[23] On the ground of prejudice Counsel argued that there is a judgment by
which the claimants acquired vested rights and it will be prejudicial if it
is disturbed or re-opened. He contended that these rights can only be
disturbed by applying the rule of law and the rule of law in the present
case is sufficient reason which, in his opinion, the Applicant had failed to
show.
[24] On the ground that the Reference is merited as the award is excessive
and not founded on any legal basis, Counsel argued that the Taxing Officer
gave a decision on the matter well aware of the position taken by the Court
that one claimant could have brought the Reference and that, therefore, the
Applicant’s argument lacked basis. Secondly he questioned the basis of the
Applicant’s assertion that the sums awarded were excessive and wondered what
they were excessive against or what the yardstick of what is not excessive
was since excessive was a relative term.
CONSIDERATION OF THE GROUNDS
[25] Rule 4 of the Rules of this Court empowers this Court, for sufficient
reason, to extend the time prescribed by these rules. In Boney M. Katutumba
– vsWaheedKarim, Civil Application No.27 of 2007 Justice Mulenga, JSC, (as
he then was) held: “… under rule 5 of the Supreme Court Rules (the
equivalent of rule 4 of the rules of this Court), the Court may, for
sufficient reason, extend the time prescribed by the rules. What constitutes
“sufficient reason” is left to the Court’s unfettered discretion. In this
context, the Court will accept either a reason that prevented an applicant
from taking the essential step in time, or other reasons why the intended
appeal should be allowed to proceed though out of time. For example an
application that is brought promptly will be considered more sympathetically
than one that is brought after an unexplained inordinate delay. But even
where the application is unduly delayed, the Court may grant the extension
if shutting out the appeal may appear to cause injustice.”
[26] I respectfully agree with that holding and will apply it in handling
the present application. I, however, also agree with the respondent that it
must be discernible that the application is made in good faith and the
reasons plausible and candid to pass the test of sufficiency. See Mohamed &Muigai
Advocates vsKang’ethe& Company Advocates H.C.C.C. No.234 of 1999 (O.S).
[27] Counsel for the Applicant stated the two main grounds of his
application and added a few others, as aforeshown, which I will proceed to
examine.
1ST GROUND
[28] In the first ground he said that inability to file in time was due to
Christmas vacation. He stated, and I quote, “… it was within my knowledge
that between the 15th December and 5th January 2009, the entire staff of the
East African Community go on Christmas vacation… so part of the 14 days
expired when Court was on vacation.”
[29] Mr. T.J. Kajwang, for the Respondents, attacked this reason for
insufficiency. He contended that the Applicant was confusing Christmas day,
official holidays, Court vacation and computation of time. He invited the
Court to find that this particular ground of delay was not sufficiently
explained by the Applicant.
[30] Having listened to arguments to Counsel, I concur with learned Counsel
T.J. Kajwang. Christmas day is an official holiday within the provisions of
Article 2 of the Rules of this Court. Court vacation is a vacation of the
Court determined by the President of the Court and published in the Gazette
vide Rule 19, and, under Rule 3, periods in (b) shall include official
holidays, Sundays and Saturdays and in (c) shall not be suspended during
Court vacations. No such thing as “Christmas vacation” exists under the
Rules of this Court.
[31] In my view the applicant had a duty to sufficiently explain what he
meant. A blanket statement that it was within his knowledge that the entire
EAC Staff go on Christmas vacation between 15th December and 5th January,
aware that it means different things to different institutions, without any
reference to the above said rules or to how he could have acquired, and
decided to rely on, this knowledge or, at least, to which officer of the
court could have “misled” him, amounts, in my view, to a fairy tale.
[32] If the Hon. Attorney General, or Mr. Ombwayo in particular had, indeed,
desired to file this reference in time surely they had, at their disposal,
all professional and material resources to find out what the rules provide.
Instead they chose to rely on generalized knowledge. On deeper inquiry the
Court finds that the first and only communication in this respect, availed
to Court, to the Clerk of the National Assembly was written by Mr. Ombwayo
and was written on the 6th January 2009, a day late. In its “options
available” the letter suggests that the Registrar’s ruling should be
referred to a single Judge in accordance with Rule 78 (current Rule 114).
The Court does not seem to see any urgency in the words used or in the tone
of the letter if indeed the Attorney General thought that time was of the
essence.
[33] The Court itself asked Mr. Ombwayo to clarify these vacation issues for
the record. First he said he did not know what the Rules provide.
Immediately thereafter he said he was not aware if the President had
declared a vacation. Then he said he believed the Court went on vacation
just like the other staff of the EAC. When the Court pressed him about this
belief he said it was a practice even in the past. In contradiction he said
that he had been able to file documents during the 2007/2008 Christmas
vacation. When it was suggested to him that it was possible, therefore, to
receive documents at that time he said that, then, an officer was called
from Kisii but that since this time it was a vacation he could not come back
to file the reference.
[34] I found his answers so incoherent that to believe them would be to
assume the very high risk of piecing them together and guessing which fits
where. I preferred not to. I formed the opinion that this ground was being
cooked up.
2ND GROUND
[35] Counsel for the Applicant’s second ground was hardship. He told Court
that his brothers at home were attacked one after another whereupon he
intervened thereby losing valuable time.
[36] Mr. T.J. Kajwang for the Respondents challenged the sufficiency of the
explanation for this ground because of the many unanswered questions
surrounding it as shown above.
[37] I am of the view that the applicant failed to sufficiently explain this
ground.
[38] Mr. Ombwayo was challenged to clarify the “vacation”, referred to in
his submissions, after which his family tragedies happened. He did not. He
was challenged to mention the respective dates on which his brothers were
attacked. He managed one, the 10th January 2009, which he could not prove.
He was challenged to indicate when he travelled to his rural home and when
he returned. He did not. He was challenged to produce medical, police or any
evidence of these attacks. He only said that all available documents had
been sent to the Teachers Service Commission as his brothers were teachers
and the Commission needed the documents to process compensation. He did not
tell the Court whether he attempted to obtain these documents and failed or
whether he thought they were not required in evidence. He was asked why he
thought the Court could believe his story without evidence and replied that
as an officer of the Court he could not be lying. He was told that this is a
Court of Law and the issue was one of proof and not one of who was lying and
who was not. He answered that he had had no opportunity to obtain proof.
When he was asked whether the Attorney General’s Chambers got incapacitated
because he was away he said he had gone upcountry and mistakenly did not
hand over the file otherwise the office was operational.
[39] The Attorney General was served with MsSijengy’s replying affidavit, in
which the sufficiency of Mr. Ombwayo’s explanation of his family tragedies
was questioned, on or around 20th May 2009. He filed nothing in evidence. He
personally sought and was granted leave to file a further affidavit. He did
file one on 11th June 2009. He did not explain any of these issues.
[40] Upon careful examination of the of arguments on this ground I could not
tell, with certainty, whether the unfortunate tragedies actually happened,
whether, if they happened, Mr. Ombwayo went home to assist or whether
nothing at all happened to Stanley and WyclifOmbwayo and the ground was a
mere gamble. With due respect , I found Mr. Ombwayo’s honesty, candour and
effort in explaining his family tragedy far less than I would require to
admit his story in Court. Clearly this was not the conduct of counsel who
wanted to move the court to appreciate the personal tragedy that befell him,
the resultant honest mistake he committed and the delay occasioned.(see
Mohamed &Muigai Advocates (supra).
[41] Even the mistake he claimed to admit of going upcountry without handing
over the file, needed to be proved, in the first place, before it could be
admitted as mistake of Counsel. I am alive to established case law that
mistake of Counsel should not be visited on his client. (seeZamNakumansivsSulemanLule
Civil Application No. 02 of 1999 (SCU). Mr. Ombwayo did not prove to the
Court that he went to Mumias or to Kakamega on any date between 19th
December 2008 and 3rd April 2009. The veracity of his story was challenged
way back in May 2009 in MsSijeny’s affidavit. He had all the time until 21st
August 2009 to prove it. He knew it was his burden as MrOmbwayo as well as
Counsel for the applicant. There is clear authority that discretion is
exercisable on the basis of evidence and sound legal principle; and that the
duty of placing the necessary evidence before the Court to enable it
exercise its discretion is squarely on the applicant; See Bogetutu Farmers
vs Mohamed Hassan Yonis H.C.C.C No. 154 of 1992.) In my view the applicant
did not discharge his duty.
3RD GROUND:
[42] The Applicant’s third ground was that there were consultations between
the Attorney General’s Office, that of the Clerk to the National Assembly
and the Treasury which delayed the filing of the application. Counsel for
the Respondents challenged this ground as shown above.
[43] The Court examined the arguments.
[44] Counsel for the Applicant was asked to clarity the nature of these
consultations, if they ever took place, and why they should have occasioned
a delay. His response was that “… some of the consultations were, in terms
of meetings and, of course, there was also a possibility of settling the
matter. Such consultations are the ones that delayed the filing of the
reference. If there is that possibility of settling the matter and also
analyzing the opinion that I had presented to them, we could not file the
reference, until maybe a decision is made by the Office of the Attorney
General and the Clerk to the National Assembly on the way forward. There is
no correspondence annexed but some of the consultations were in terms of
meetings…” When he was pressed further about the nature of consultations he
responded that there was also some confusion between the Attorney General
and the Clerk to the National Assembly, over who should pay. When he was
asked whether the Clerk to the National Assembly responded to the Attorney
General’s letter of 6th January 2009, and whether that response was in
writing, he told the Court that the Clerk replied in writing, sometime in
February 2009, that he, in fact, instructed the Attorney General to proceed
and file a reference pursuant to Rule 114 and that, although he had not
found that letter to annex it to his affidavit, it was within his knowledge
that it existed and it preferred the option of filing a reference.
[45] Upon consideration of the arguments of Counsel I found the evidence of
consultations placed before the Court by Counsel, very insufficient. Counsel
merely stated that there were consultations and that he was willing to be
cross-examined on his statement. With due respect this was not the burden
placed on him. The burden was to place evidence before the Court and not to
assure the Court that the evidence existed somewhere else. In the unlikely
event that the consultations took place, the Court was not told why they
impaired the capacity of the Attorney General’s Office to file the
Reference. Even a possible settlement, to which the Respondents were not
party, would not have impaired the Attorney General from filing the
Reference, just in case.
[46] The only correspondence on record is of 6th January 2009. This was
after the 14 days. It was late already. The alleged consultations took
place, if at all, after that date. In my view no matter how fast agreement
would be reached on the way forward, it seems not to have been the intention
of both of these offices that this application is filed in time.
[47] The Court was told by Mr. Ombwayo that the Attorney General waited for
the Clerk’s reply before filing the application. But apart from stating,
from the bar, that the Clerk replied, no evidence was placed before Court.
In other words it was not proved whether the Clerk, up to know, ever
responded. Whether it is true, as Counsel told Court, that the Clerk replied
and instructed the Attorney General to proceed and file a reference under
Rule 114, no evidence was placed before Court. Whether it is true that the
letter could not be located in the Attorney General’s Chambers, no evidence
was brought. Assuming it is true the Attorney General received the missing
letter, “sometime in February 2009”, as Mr. Ombwayo told Court, still the
Court was not told what happened all the way to 3rd April 2009. Counsel for
the respondents sought an answer as to why they were not part of these
consultations or why they should be affected thereby in the end. Mr. Ombwayo
had no answer for this as well.
[48] In Paul Njorogevs The Attorney General and others, HC Misc case no.90
of 2004 Justice W.S. Deverell, faced with inability due to negotiations,
such as the inability due to consultations in the present case had this to
say; “… I consider that it was a risky strategy for the applicants to delay
filing the record of appeal on the strength of verbal negotiations, which do
not appear to have been reduced to writing at any material stage. It would
have been prudent to have complied with the requirements laid down in the
rules while the alleged negotiations were ongoing and to have confirmed
their existence in writing at some stage. As it is I am not in position in
which I can make any meaningful decision as to who is telling the truth as
to the existence of the alleged negotiations. The burden of proving their
existence is upon the applicants who now wish to rely upon them and I am of
the view that this burden has not been discharged.”
[49] This authority summarizes my opinion on this ground. I am not in
position in which I can ascertain whether, in truth, these consultations
took place and, if they took place, why the Respondents were not involved,
and whether the objective was to find a way forward over this matter or to
frustrate it. The burden of proving that they took place, what the objective
was, and with what the result was upon the Applicant who now wish to rely on
them. In my opinion this burden was not discharged. The Respondents cannot
be affected adversely by unevidenced consultations which they knew nothing
about.
OPINION OF THE COURT ON EXPLANATION FOR THE DELAY
[50] I am aware of, and respectfully agree with, the holdings of Githinji JA
in WasikevsKhisa& Another (Civil Application NAI 241 of 2003) that “… it
would be a fetter on the wide discretion of the Court to require a minute
examination of every single act of delay and to require every such act to be
satisfactorily explained…” and that “… it is not every delay in taking any
appropriate step required that would disentitle a party to any relief. It is
only the unreasonable delay which is culpable and whether or not delay is
unreasonable will depend on the circumstances of the case…” Let me cast a
comparative glance at the Wasike explanation for delay and the instant one.
In Wasike the applicant said he was sick for sometime and annexed documents,
complete with individual dates, of consultation and names of the Doctor he
consulted. This persuaded the Court that he was actually sick and unable. He
also told Court that he was engaged in a High Court Election Petition at
Nyeri and annexed the Court proceedings showing which petition it was and
the various days it was heard. Understandably the Court was satisfied with
the truth of the applicant’s story. Requiring a minute examination of each
act beyond this would be to ask too much.
[51] In the instant case Counsel for the Applicant claimed inability due to
Christmas vacation, due to family tragedy and due to consultations in the
concerned institutions of Government. The Court did not require him to prove
every minute detail of these stories. All that the Court required of him was
to place before it the bare minimum to enable it form an opinion that what
he was saying was probably true. He failed on each.
[52] I find the delay, therefore, inordinate, unreasonable and wanton. And I
find, further, the explanations insufficient, less than candid and, in
places, highly improbable.
[53] My considered view is that the Attorney General’s Chambers adopted a
casual and “not urgent” approach in the way they handled the Ruling on
Taxation and should blame nobody but themselves for the delay that resulted.
[54] Upon the above findings alone, this application should fail. But in
keeping with the last holding in Boney M. Katutumba V. waheedKarim (Supra),
I will consider the other grounds to assure myself that shutting out the
Reference will not appear to cause injustice.
4TH GROUND:
[55] Counsel for the Applicant’s argued that there is sufficient public
interest in this application to warrant enlargement of time. He told court
that the Kenyan public stands to lose if such a high award is paid out of
the Government Consolidated Fund without Government having an opportunity to
have it reviewed. It was challenged.
[56] Upon consideration of the arguments I think this is a case of
misplacement of public interest. I think that the Kenyan public, including
the respondents, should be interested in scrutinizing issues leading to the
award and not on the quantum of award itself. Counsel’s argument suggests
that if the award is reduced then the Kenyan public interest is diminished.
Would the respondents, also members of the Kenyan public, support this view?
I think not. Counsel could have done well perhaps to define the public
interest he was talking about. He did not. The Kenyan public would for
example be interested, in my view, on issues like why and how they ended up
in this litigation, whether it was justifiable and unavoidable, why, then,
was the Reference on Taxation not filed in time and the like. And it is
obvious that the Court has nothing to do with such issues. The award,
whatever the amount, is a mere consequence and the Court’s hands in deciding
awards cannot be tied to or pegged on an unknown quantity of public interest
unless some law says so and defines the Court’s minimum and maximum limits.
I was not shown any. In the Nairobi City Council case (supra) Court held
that the public had a right to scrutinize the processing and awarding of
tenders by the City Council. That was a public interest issue, not the money
that was paid to the winners of tenders, which would be a mere consequence.
I find, therefore, the issue of public interest, in the sense it was argued
before me, quite misplaced.
5TH GROUND:
[57] On the resources of the parties Counsel singled out the 1st claimant in
the Reference Prof. Peter Anyang Nyong’o to correspond with the “single
claimant” who “could have brought the reference” (see Ref. No.1 of 2006),
and told Court that he is a member of Cabinet who would suffer no prejudice
if extension is granted because, “…a Cabinet Minister is not a man of mean
resources.” Nothing in the way of evidence was placed before me in support
of this assertion. It was made from the bar. In my view this is a personal
view Mr. Ombwayo holds. I was not told how and why he singled out the 1st
Claimant from the other respondents and made him the “single claimant” in
Reference No.1 of 2006. Secondly, unless Mr. Ombwayo’s argument was that to
be a Cabinet Minister in the Republic of Kenya is synonymous with being a
person of no mean resources, he did not show me, and I doubt, whether he is
so privy to Honorable Anyang Nyong’o’s resource situation and that he can
even make an informed opinion on how short or long the he can wait without
any prejudice. I am not in a position to form any opinion either way.
[58] Counsel further told Court that the respondents would suffer no
prejudice if extension is granted because they have not commenced the
process of execution against the Government as envisaged under Rule 74 of
the Rules of this Court, Rule 3 of order 28 of the Civil Procedure Act
(Chapter 21 Laws of Kenya) and Section 21 of the Government Proceedings Act
(Chapter 40 Laws of Kenya), that as there is still a lengthy procedure for
the Government to pay and, therefore, that the Reference would be heard and
determined quickly without occasioning prejudice from such delay. First of
all my reading of Section 21 of the Government Proceedings Act does not
suggest a lengthy delay in executing against Government. I was not told why
it should be lengthy. Secondly, while it is true that the respondents have
not commenced execution proceedings to date, I would not hold that they
would suffer no prejudice if extension is granted. The time the Court should
seek accountability for is between the 22nd January and 3rd April 2009. The
respondents cannot, in my view, be held accountable for all the time between
those dates. The 22nd of January 2009 is the date of the Respondents’ last
formal correspondence to the Hon. Speaker of the National Assembly, copied
to the Hon. Attorney General, offering amicable settlement “devoid of any
acrimony”. They must have waited for some response for some time. Ms Judith
Sijeny’s affidavit, at paragraph 19, avers that there was no response to
explain any handicap or predicament or any action taken. The 3rd of April
2009 is the date this application was filed in this Court and copied to the
Respondents. Commencement of execution proceedings then would be legally
pointless.
[59] I disallow this ground on three accounts; first that the respondents
did not sit on their rights and waste valuable time. Second, that since, as
Counsel for the Applicant told Court, execution against the government “is a
very lengthy process”, the respondents should be afforded an opportunity to
embark on it sooner rather than later and third, I associate myself with P N
Waki (JA) in Samuel Ondieki V SamwelMageto (2006) KLR “… The right to enjoy
the fruits of judgment is as hallowed as the right of appeal and a breach of
either for no good reason would be prejudicial”.
6TH GROUND:
[60] Counsel for the Applicant told court that the application is merited
for three reasons. First that the Taxing Officer did not take into
consideration the order of court that in taxing the bill he had to consider
that the one claimant could have brought the Reference, second, that it was
not founded on any legal basis and, third, that the award of 1.3m$, as
instruction fees, was inordinately high and excessive and not commensurate
with the amount of work done and the complexity of the dispute. It was
challenged.
[61] I am aware, as I examine this ground, of the very thin line I tread in
order avoid examining the Reference on Taxation itself. Therefore my opinion
must be based on outwardly visible signs of merit and not the deep and
invisible signs for which a microscope might be required.
[62] Several authorities (for example (Mwangi v. Kenya Airways [2003] KL
P.56, Leo SilaMutiso v. Rose HellenWangariMwangi Civil Application No. NAI
225 of 1997) concur that in these applications merit, or chance of success
if the application is granted, is merely stated as something for a
“possible” consideration, not that it must be considered. The Wa’njuguna
case (Misc Civil Application 621 of 2000) the applicant relied on is very
instructive in dealing with a Ruling on Taxation itself not application to
extend time to have a ruling on Taxation challenged as in the present case.
I would therefore resist the temptation to rely on it for to do so would be
to cross the thin line.
[63] On the first reason, a quick glance at the Ruling on Taxation shows
that the taxing officer referred himself to the particular order which
Counsel for the applicant says he did not consider. On the second, Counsel
did not show me that the Taxing Officer relied on a wrong or non-existent
law or fact, or that he was plainly wrong, in arriving at the award of
1.3m$. On the third, Counsel did not show me, for example, that the taxing
officer taxed a non-taxable item or that he included an item that had not
been included in the bill or that he relied on a wrong calculation formula
to arrive at the award.
[64] He himself agreed that the matter was complex but his argument was that
it was not complex enough to warrant an award of 1.3m$. He did not show me
any fixed rule as to minimum or maximum levels of awards contrary to which
the Taxing Officer made the instant award. With due respect, I do not think
that the Reference can be merited on such unevidenced opinions of the
Applicant.
[65] I associate myself with the observation of the Privy Council in
RatmanvsCumaraSamy (1965) I WLR 10 at Page 12, also cited with approval in
Ambundavs Tanzania Harbours Authority (Civ. App. No. 164 of 2005), TZCA 48
(4 April 2006), that “The rules of Court must be obeyed, and in order to
justify a Court in extending the time during which some step in procedure
requires to be taken, there must be some material upon which the Court can
exercise its discretion. If the law were otherwise, a party in breach would
have an unqualified right to an extension of time which would defeat the
purpose of the rules, which is to provide a time table for the conduct of
litigation”.
[66] I would only add that if that “party in breach” is a Partner State
within the East African Community, it would not only obey the rules but it
would have to be seen, by all, to spare no effort to obey the rules if the
Rule of Law in the Community is to achieve full and uniform respect.
[67] In the instant case, I find no material upon which I can exercise my
discretion in favour of the Applicant. He has failed to satisfactorily and
candidly explain the delay and other grounds to warrant extension of time.
The application is lacking in merit and the scales of justice tilt towards
dismissing it. I accordingly dismiss the same with costs to the Respondent.
Dated at Arusha this ------------------------ day of
-----------------------------------2009
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