[2011] KEHC 3850 (KLR)
The court held that it has no jurisdiction to stay taxation proceedings before a taxing officer except in the manner provided under paragraph 11 of the Advocates (Remuneration) Rules or by plaint to recover costs. Since the plaintiff's notice of motion did not follow these prescribed procedures, the court could not...
Source-derived case information.
- Citation
- [2011] KEHC 3850 (KLR)
- Parties
- Plaintiff: Hezekiah W. Gichohi; Defendant: Uhuru Highway Development; Defendant: 2nd Defendant; Defendant: 3rd Defendant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 292 of 2008
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Notice of Motion for Stay of Taxation Proceedings
- Outcome
- preliminary objection upheld; notice of motion struck out with costs to defendants
- Legal Topics
- Jurisdiction of High Court, Taxation of Costs, Preliminary Objection, Advocates Remuneration Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiah W. Gichohi
Plaintiff
Uhuru Highway Development
Defendant
2nd Defendant
Defendant
3rd Defendant
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Notice of Motion for Stay of Taxation Proceedings
Legal Issues
- 1 Whether the High Court has jurisdiction to stay taxation proceedings before a taxing officer.
- 2 Whether the plaintiff's notice of motion seeking stay of taxation proceedings is properly before the court.
Ratio Decidendi
The court held that it has no jurisdiction to stay taxation proceedings before a taxing officer except in the manner provided under paragraph 11 of the Advocates (Remuneration) Rules or by plaint to recover costs. Since the plaintiff's notice of motion did not follow these prescribed procedures, the court could not entertain the application. The preliminary objection raised by the 3rd defendant was therefore upheld, and the plaintiff's notice of motion was struck out with costs to the defendants.
Court Disposition
preliminary objection upheld; notice of motion struck out with costs to defendants
Orders
- The preliminary objection dated 7.10.11 is upheld.
- The plaintiff's notice of motion dated 29.9.10 is struck out.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 292 OF 2008
HEZEKIAH W. GICHOHI ………………………………PLAINTIFF
VERSUS
UHURU HIGHWAY DEVELOPMENT & ORS…… DEFENDANTS
RULING
Coram : Mwera J
Kibe N/A for plaintiff
Kalove for 1st defendant
Mbaluto for 2nd defendant
Mubea for 3rd defendant
Njoroge Court Clerk
On 12/10/10 the court was informed that the plaintiff had filed a notice of motion dated 29. 9.10 to stay taxation proceedings against him.
Mr. Mubea for the 3rd defendant told the court that he had filed a preliminary objection to that notice of motion to the effect the court had no jurisdiction to stop the said taxation proceedings. It was then undertaken by consent that the said preliminary objection could be heard by way of written submissions on 9. 12. 10. No proceedings went on then but when they got under way on 20. 10. 11 Mr. Murgor for Mr. Kibe for the plaintiff informed the court that their submission on the objection had been filed.
Mr. Kalove for the 1st defendant told the court that his client and the 2nd defendant supported the 3rd defendant’s preliminary objection and Ms Ogula appearing for that party informed the court that a submission on their preliminary objection had been filed. The parties were granted opportunity to highlight their respective submissions on 1. 2.11. That was not to be on two other occasions because Mr. Kibe who was more keen on that course did not appear. So on 4. 2.11 the court decided that a ruling would be drafted without highlights from the plaintiff.
On that occasion again the 1st and 2nd defendants supported the preliminary objection. Then Mr. Mubeya informed the court that the plaintiff had not filed any submission regarding the objection but he had instead submitted on his notice of motion dated 29. 9.10. To counsel, this meant that his client’s objection was uncontested.
The preliminary objection under review was dated 7. 10. 11. A copy thereof was not readily available on the file but its initiator, the 3rd defendant, stated in its submission something to the effect:
1)that this court has no jurisdiction to stay proceedings in respect of taxation before a taxing officer.
It was contended that that officer’s special jurisdiction was derived from the provisions of paragraph 11 of the Advocates (Remuneration) Rules. And when the taxing officer is in the process of exercising that power the court cannot interfere unless at the end of it a reference is made to it.
To supportthat position the two High Court cases of Fulchand M. Shah Vs Panchand J. Shah & 6 Others [2010] e KLR, and Daly & Figgis & Co. Advocates Vs Karuturi Networks Ltd & Anr [2009] e KLR were cited in essence following the court of Appeal decision in Sharma Vs Uhuru Highway Development Ltd [2001] 2 EA 530. In those cases it was propounded that where a matter has not come before the High Court regarding taxation eg. by way of plaint to recover costs or a reference under paragraph 11 (above), the court has no jurisdiction to entertain any proceeding coming by a course other than those two. Otherwise the proceeding is a nullity. The two other defendants aligned themselves with this position while the plaintiff did not respond to the preliminary objection. Instead he submitted on his motion dated 29. 9.10 against which the objection had been laid.
After considering all the above this court concurs with the decisions in the two High Court cases and follows the principle laid down in the Court of Appeal case. The preliminary objection is upheld. The notice of motion dated 29. 9.10 is struck out with costs to the defendants.
Ruling delivered on 22/2/11
J. W. MWERA
JUDGE