[2022] KEHC 15014 (KLR)

Guantai t/a Guantai Advocate & Associates v Ireri (Miscellaneous Civil Application E005 of 2022) [2022] KEHC 15014 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15014 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Civil Application E005 of 2022

LM Njuguna, J

November 2, 2022

Between

Samuel Kirimi Guantai t/a Guantai Advocate & Associates

Applicant

and

Benjamin Njiru Ireri

Respondent

Ruling

1. The applicant herein filed the application dated January 19, 2022 seeking for orders that;i.The honourable court be pleased to set aside the taxing officer’s ruling delivered on December 6, 2021 as it relates to the reasoning and determination of the instructions fees, the special fees, items 1(b) -6, 7b, 9-13, 14b-18, 19b-27b, 28-31b, 32-40 and further items 1-6 of the disbursements on the applicant’s bill of costs dated February 17, 2021. ii.The honourable court be pleased to adjust the figures and reassess the fees due to the applicant.iii.That in the alternative, this honourable court refers the matter for fresh taxation by the deputy registrar in any other competent jurisdiction after considering the applicant’s submissionsiv.Costs of this application be provided for.

2. The application is premised on the grounds on its face and supported by the affidavit sworn by Samuel Kirimi Guantai wherein among other issues, he faulted the taxing officer for having failed to exercise her discretion judiciously in taxing the bill of costs and more particularly items noted as instructions fees, special fees, items 1-40 and items 1-6 as disbursement.

3. The applicant’s case is that the learned taxing officer erred in principle as she arrived at a decision which is contrary to the applicable law and that the taxing officer misapprehended and misapplied the law and further, without ascribing to the law, unjustifiably and without reasonable grounds in erroneously stating that the client had already paid instructions fee to a different advocate. Further that, the taxing officer failed to exercise her power and discretion given to her by the Advocates Remuneration Order in arriving at the value of the subject matter of the suit. Basically, the applicant attacked the award by the taxing master as being too low.

4. The application is opposed via a replying affidavit sworn on June 24, 2022 and wherein the deponent deposed that the application is misconceived and it’s premised on a misapprehension of law and facts. That the taxing officer’s ruling should not be set aside for the reason that this was a simple claim seeking declaration of the plaintiff’s rights with the benefits flowing automatically. He further reiterated the contents of his replying affidavit dated June 24, 2022 wherein he stated that he had previously settled instructions fee with the previous firm of Mungai Kivuti & Co Advocates on or around the month of October, 2015. That thereafter, the said firm handed over his file to him and informed him that the firm would continue handling his matter.

5. It was his case that under no circumstances did he ever instruct the applicant herein. That the applicant did not raise any issue that deals with the principles of taxation but rather quantum which are well within the discretion of the taxing officer and the same should not be interfered with by this court merely for the reason that the applicant fees ought to be paid on a higher or lower scale. It was deponed that given that the applicant has not shown or pleaded that the taxing officer exercised, or applied the wrong principle, the application herein should be dismissed with costs.

6. Directions were taken that the application be canvassed by way of written submissions which directions the parties duly complied with.

7. I have considered the application herein, the response thereto and the parties’ submissions. However, before the court can delve into merits of the reference, it is important for me to address the issue of jurisdiction.

8. From the amended plaint amended on November 8, 2017, the respondent herein sought for prayersinter alia; an order of permanent injunction restraining the defendant and his assigns from cultivating and/or occupying land LR Mbeere/Kirima/1314 and Mbeere/Kirima/1315; an order for eviction; mesne profits, damages and costs of the suit. It is my humble view that the nature of the prayers herein are not only related but also emanates from land and land use.

9. From the foregoing, it is clear that the Environment and Land Court has original jurisdiction to hear all matters relating to the environment and to the use and occupation of land. It is trite that a court’s jurisdiction flows from either the Constitution, legislation or both as the Supreme Court appreciated in the case of Republic v Karisa Chengo & 2 others[2017] eKLR;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

10. It is important to note that, with the enactment of the Environment and Land Court Act of 2012, the jurisdiction to determine disputes relating to ownership and use of land is bestowed on the Environment and Land Court. It is my considered view, as such, that issues arising out of the instant reference is not within the jurisdiction of this honourable court. [See the decision of the Supreme Court in the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No 19 of 2018- paragraph 40)."This is for the reason that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing as jurisdiction must be acquired before a case can be heard."[See the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR].

11. Similarly, in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the Supreme Court held as hereunder;"A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings."[Also see articles 165 (5) and 162 (2) of the Constitution; and section 13 of the Environment and Land Court Act].

12. From a reading of the above sections/articles, it is clear that the Constitution intended to create special courts with special jurisdiction in land matters. That jurisdiction is not therefore donated to the High Court and as such, this court humbly downs its tools.

13. In the end, the orders that are commendable to me are as follows:i.The application dated January 19, 2022 is hereby struck out.ii.Costs to the respondent.

14. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE......................for the Applicant.....................for the Respondent