[2006] KEHC 599 (KLR)
The court held that the application before it was not a reference from the decision of the Taxing Officer but an application for review under Order 44 Rule 1 of the Civil Procedure Rules. According to Order 44 Rule 4, such an application must be heard by the Deputy Registrar who made the order, regardless of whether...
Source-derived case information.
- Citation
- [2006] KEHC 599 (KLR)
- Parties
- Appellant: James Mwarari Gatome; Appellant: Patrick R. Kibuchi; Appellant: S. P. Njagi; Appellant: Patrick M. Lynus; Appellant: L. M. M’Mbwi; Appellant: J. M. Nderitu; Appellant: Jason Kaburo; Appellant: Ibrahim Isaack Jarit/a Gatome & Associates; Respondent: Land Surveyor’s Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 525 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Consent Order
- Outcome
- application struck out with costs
- Judges
- ARM Visram
- Legal Topics
- Review of Orders, Consent Orders, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwarari Gatome
Appellant
Patrick R. Kibuchi
Appellant
S. P. Njagi
Appellant
Patrick M. Lynus
Appellant
L. M. M’Mbwi
Appellant
J. M. Nderitu
Appellant
Jason Kaburo
Appellant
Ibrahim Isaack Jarit/a Gatome & Associates
Appellant
Land Surveyor’s Board
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Consent Order
Legal Issues
- 1 Whether the High Court has jurisdiction to hear an application for review of a consent order entered before the Deputy Registrar.
- 2 Whether the application for review should have been brought before the Deputy Registrar who made the order.
Ratio Decidendi
The court held that the application before it was not a reference from the decision of the Taxing Officer but an application for review under Order 44 Rule 1 of the Civil Procedure Rules. According to Order 44 Rule 4, such an application must be heard by the Deputy Registrar who made the order, regardless of whether the order was made by consent or otherwise. The High Court therefore lacked jurisdiction to entertain the application, rendering it incompetent. Consequently, the application was struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application is struck out as incompetently before the court.
- The applicants shall pay the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 525 of 2005
JAMES MWARARI GATOME ……………..……................….. 1ST APPELLANT
PATRICK R. KIBUCHI ………………...…………................…. 2ND APPELLANT
S. P. NJAGI …………………………...…………….............….. 3RD APPELLANT
PATRICK M. LYNUS ………………..…………...............……. 4TH APPELLANT
L. M. M’MBWI …………………………………................…….. 5TH APPELLANT
J. M. NDERITU …………………………………..............…….. 6TH APPELLANT
JASON KABURO ………………………..…….............……… 7TH APPELLANT
IBRAHIM ISAACK JARIT/A GATOME & ASSOCIATES …8TH APPELLANT
VERSUS
LAND SURVEYOR’S BOARD ……………….............………… RESPONDENT
(Appeal under Section 18 of The Survey Act, Chapter 299 of Laws of Kenya from the decision of the Land Surveyor’s Board delivered on 18th July, 2005 under Section 17 of The Survey Act Chapter 299 of the Laws of Kenya Section 3, 3A, 5, 75(h), 78 of Civil Procedure Act, Chapter 21 of Laws of Kenya and Order XLI of Civil Procedure Rules, Section 77 of the Constitution and all other enabling provisions of Law)
RULING
This application, brought under Order 44 Rule 1 of the Civil Procedure Rules, seeks to review and set aside the Consent Order of 10th March, 2006 entered into between the two Counsels, on behalf of their clients, settling the Respondent’s bill of costs in the sum of Kshs.400,000/=.
Now, that Consent was recorded before the Deputy Registrar who then issued the Certificate of Taxation. Why then is this Application before me?
Counsel for the Applicant submitted that the Deputy Registrar having issued the Certificate of Taxation was functus officio, and that this application must therefore be heard before the High Court. I would disagree with that proposition. What is before me is NOT a reference from the decision of the Taxing Officer, because if it were, it would not be brought under Order 44, and the Reasons for the Registrar’s Ruling would be required before the application could be heard. There is no such thing here. This is pure and simple an application for review under Order 44 (1), and in accordance with Order 44 (4) it must be heard by the Deputy Registrar who made the Order, whether by Consent or otherwise.
Accordingly, this application is incompetently before this Court, and the same is struck out with costs.
Dated and delivered at Nairobi this 27th day of November, 2006.
ALNASHIR VISRAM
JUDGE