[2004] KEHC 377 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

MISC APPLICATION NO. 271 OF 2003

KENYA BUS SERVICE LTD …….…....................……….. OBJECTOR

VS

NYAMOGO & NYAMOGO & CO. ADV…….....………. RESPONDENT

R U L I N G

The subject matter of this ruling is a chamber summons stated to be brought pursuant to the provisions of Order VI A rules 5 and 8, Order V rule 12 and Order XLVI rule 5 of the Civil Procedure rules and Section 77 (a) of the Constitution. The applicant objector sought in the summons for the following orders:

(i) For leave to amend the chamber summons dated 16. 4.2003 once the Deputy Registrar furnishes the reasons for her taxation on 28. 3.2003.

(ii) For an alternative leave for this reference to be amended by attaching thereto the proceedings, order and ruling delivered in Busia H.C. Misc application No. 42 of 2003.

(iii) That the proceedings herein be stayed until the said reasons for taxation are supplied to the objector.

(iv) That these proceedings be stayed pending directions from the Honourable, the Chief Justice that a constitutional court be set to consider if the objector’s entrenched right to a fair hearing have been breached herein or whether he can get a fair trial without being given reasons for the decision in the taxation ruling aforesaid.

(v) Costs of the application.

The summons is supported by the affidavit sworn by the objector’s Advocate mr. Onyancha Bw’omote.

The main ground argued in support of the application is that taxing officer has not given her reason for her taxation of 28. 3.2003 despite the objector having filed his objection and despite several inquiries and requests. The objector exhibited several correspondences as evidence of the efforts made to secure the reasons from the taxing officer.

The second ground advanced by Mr. Bw’omote for the objector is that he believes the Deputy Registrar intends to punish the objectors and his firm because they dared to question her inordinate delay to give the reasons.

The objector further averred that the Respondent will suffer no prejudice if the orders sought are granted.

The objector also submitted to the effect that the objector’s right to a fair hearing has been breached hence their fundamental rights under the constitution should be determined by a constitutional court to be constituted by the Honourable the Chief Justice.

The Respondent was granted leave to address the court from the bar in opposition of the court from the bar in opposition of the application without filing a replying affidavit due to the urgency of the matter.

It was the submission of Mr. Nyamogo for the Respondent that this court can only hear matters which are competently. He was of the view that chamber summons herein is incurably defective because they were brought under the wrong procedure. It was his submission that the applicant should have come under the Advocates Act instead of the Civil Procedure Act.

Mr. Nyamogo further stated that an amendment can only be allowed where it will not cause injustice to the other side.

The Respondent’s counsel was also of the view that the objector should have filed a stay of execution before the Deputy Registrar rather than come directly before this court. It was also alluded that there was no competent reference to enable this court to grant a stay.

I have keenly considered the powerful submissions of both learned counsels. I have also perused the material placed before me. One aspect which has struck my mind after listening to the long and winding submissions is on the aspect of whether the reference before me is a competent. The matter which was listed for hearing before me on 5. 3.2004 was the chamber summons dated 16. 4.2003. The same is basically premised on the provisions of paragraph 11 of the Advocates Remuneration Order. However this summons was not heard because the applicant objector wanted the summons dated 3. 3.2004 the subject matter of ruling to be heard first so that they may make amendments on the summons dated 16. 4.2003 before it is heard.

Before dealing with the matter relating to the competency of the Reference, I think I should consider the main grounds put forward by the objector. Mr. Bwomote for the objector has bitterly complained that the taxing officer who is the Deputy Registrar to this court has deliberately frustrated his efforts in the matter by inordinately delaying to give reasons. It is his view that the objector has no way of forcing the Deputy Registrar to write reasons. I refer to paragraph 18 of the affidavit:

“That it is in the interest of justice that this case be decided on the merits rather than on the excuses that the record is incomplete when clearly the applicant can not force the Deputy Registrar to write these reasons.”

I am of the opinion that the situation was not all that desperate as portrayed by the objector. This is a clear instance where a taxing officer has deliberately refused to perform her statutory duty. The objector has the option instituting the necessary proceedings to compel the taxing officer by an order of mandamus to perform her statutory duty prescribed under paragraph 11, (2) of the Advocates Remuneration Order. However it would appear that a remedy is now time-barred due to the inordinate delay by the objector to seek for that remedy.

The other ground which the objector has put forward is that the Respondent shall not suffer any prejudice. It is the view of Mr. Nyamogo that his client would suffer great loss. He is also of the view that the objector applicant should have come under the provisions of the Advocates Act. I will start with the latter submission of Mr. Nyamogo. I think the relevant provision Mr. Nyamogo was attacking must have been order VI A rules 5 and 8 of the Civil Procedure rules but the other quoted provisions i.e order V rule 12 and Order XLVI rule t5 of the Civil Procedure rules have no relevance. The objector’s advocate did not attempt to show in his submissions the relevance of these provisions. I think Mr. Nyamogo was wrong to state that the provisions of Order VI A which is in respect of amendments cannot be invoked. The reading of the order VIA rule 5 (1) will reveal that this court is given an unfettered discretion to allow an amendment to correct any defect or error in any proceedings. Of course Mr. Nyamogo was right on the first limb of his argument that such an amendment should not be allowed if it will cause prejudice to a party. In this case if allow the amendment sought it would take away a legal right of the Respondent. The Respondent had raised an objection the effect that the chamber summons dated 16. 4.2003 was incompetent having been filed before reasons were granted. The objector now wants to cure the defect by seeking leave to amend the summons with a view to introduce what was missing.

The final submission by the objector is that their constitutional right to a fair hearing has been breached, hence they would like these proceedings to be stayed until the matter is resolved by the Chief Justice. The only problem I have with this submission is that the applicant /objector has not properly laid the basis of this argument. I have not been shown that a constitutional reference has been filed by the applicant save for the mention in one of the paragraph of the summons of 3. 3.2004. It is trite law that a constitutional reference can only be made through a substantive application under the rules prescribed vide legal notice 133 of 2001. even if the applicant/objector had filed a formal application as prescribed the rules and on the basis of the grounds argued herein then I do not think any of objectors rights had been breached. I have not been shown where the objector was denied a right of a fair hearing save for the fact that the taxing officer has inordinately delayed to give reasons which is a different complaint which the law gives legal redress as I will demonstrate in a short while.

There was also the submission that the applicant/objector should have filed an application for stay of execution of execution or proceedings before the Deputy Registrar before coming to this court. I think I am in agreement with Mr. Nyamogo in this respect. I can only have jurisdiction to hear the matter if the Deputy Registrar refuses the application or when the matter has been placed before me after the reasons have been given.

I now go back to the issue of the competency of the reference. Under paragraph 11 iv & (2) of the Advocates Remuneration Order it is provided as follows:

“ 1. Should any party o bject 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.

2. The taxing officer shall forthwith record and forward to the object or the reasons for his decision on those items and the objector may within 14 days from the receipt of the reasons apply to a Judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.”

It is not denied by the objector that the chamber summons was filed pursuant to Paragraph 11 (2) of the Advocates Remuneration Order when reasons had not been given. The admission is made in both the affidavits in support of the chamber summons dated 16. 4.2003 and that of 3. 3.2004.

It is in my considered view that the chamber summons can only be competently before me when it is lodged after reasons have been supplied to the objector. The chamber summons dated 16. 4.2003 is premature hence incompetent. In such a case I have jurisdiction to have the same struck out ex-debito justitiae.

In view of what I have stated, then I am not obliged to consider the other grounds in support of the application. I cannot grant leave to amend or stay a pleading or proceeding which is incompetent.

In the final analysis the chamber summonses dated 16. 4.2003 and that of 3. 3.2004 are ordered struck out and dismissed respectively with costs to the Respondent.

DATED THIS ………………DAY OF ………………..2004

J.K. SERGON

JUDGE