[2022] KEHC 12011 (KLR)

Kisia v Lubulella & Associates Advocates (Miscellaneous Application E1059 & E1112 of 2020 (Consolidated)) [2022] KEHC 12011 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12011 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E1059 & E1112 of 2020 (Consolidated)

JN Mulwa, J

July 21, 2022

Between

Patrick Sagwa Kisia

Client

and

Lubulella & Associates Advocates

Applicant

Ruling

1. By an application dated May 16, 2022, the applicant Patrick Sagwa Kisia seeks orders;1. That this honourable court be pleased to review and set aside its orders issued on the May 5, 2022 dismissing the applicant’s reference application dated November 22, 2021. 2.That pending the hearing and determination of this application, there be a stay of execution of the orders issued on the May 5, 2022. 3.That this honourable court be pleased to grant leave to the applicant to file a notice of objection out of time.4. That upon filing of the notice of objection, this court be pleased to reinstate the applicant’s reference application dated November 22, 2021 and deem it as properly filed and do issue the said application with a date before the honourable judge for hearing on its merits.

2. Upon grounds stated at the face of the application and supporting affidavit of Joan Misere, advocate for the applicant. It is the advocate’s dispositions that the application was dismissed for want of procedure as provided for under paragraph 11 of the Advocates Remuneration Order; which she states to have been due to inadvertent mistake for not filing a notice of objection before proceeding to file the tax reference application, subject of the application, and owns up to the fault.

3. The application is filed pursuant to the provisions of order 51 rule 7(2) of the CivilProcedure Rules and paragraph 11 of the Advocates Remuneration Order.

4. In opposition, the respondent Lubullellah & Associates, Advocates filed grounds of opposition dated May 19, 2022 enumerating numerous grounds of objection. In addition, both parties have filed written submissions to urge their respective positions on the application.

Applicant’s Case and Submissions 5. The applicant raised two issues for determination;1. Whether this court has jurisdiction to hear and determine this application;2. Whether the applicant’s dismissed reference application dated May 16, 2022 should be reinstated.

6. While submitting that matters concerning taxations of bills of costs are guided by the Advocates Act, the applicant recognized that the Civil Procedure Rules also apply as far as they do not negate or defeat the object and purpose of the Advocates Act, and cited the Court of Appeal case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR.

7. It is a further submission that this court is clothed with jurisdiction under order 45(1) of the CivilProcedure Rules stating that by dint of section 89 of the civil Procedure Act, that the matter before the court was civil in nature and did not conflict with the provisions of the Advocates Remuneration Order.

8. To Justify the above, the applicant submitted that the High Court, under article 159 (2)(d) of theConstitution and it’s inherent jurisdiction is empowered to entertain the application for review as the said rules are not inconsistent with the objects of the Advocates Remuneration Order.

9. In support, the applicant cited several authorities to support its arguments that when a mistake is made, it does not follow that a party should suffer the penalty of not having their case heard on merits, that the door of justice is not closed because a mistake has been committed by a lawyer who ought to know better; that a court ought to do whatever is necessary to rectify it, being; Peter Mwangi Macharia v Alphard Warotho Komu & 2 others [2019] eKLR, JG Builders v Plan International [2015] eKLR, Belinda Muvai & others v Amoi Wainaina [1978] KLR 2782 and Patriotic Guards Ltd v James Kipchirchir Sambu [2018] eKLR.

10. Finally, the applicant has urged that its right to be heard is a valued right, and it would offend all notions of justice if its rights were prejudiced or affected without the party being afforded an opportunity to be heard.

The Respondent’s Case and Submissions 11. Issues framed by the respondents are:1. Whether this court has jurisdiction under any law to review its dismissal or striking out of a reference application.2. Whether this court is functus officio in view of paragraph 11(3) of the Advocates Remuneration Order.3. Applicability of provisions of order 45 of the Civil Procedure Rules 2010 to taxation matters.

12. The respondent faults the applicant for not citing the enabling provisions of the law under which the application is premised on ; or which confers jurisdiction to the court to entertain a review application under paragraph 11(2) of the Advocates’ Remuneration Order, which it is submitted, does not confer jurisdiction to the court to review its dismissal orders of a reference and further that under paragraph 11(3), an aggrieved party by the decision of the judge upon any objection under sub- section (2) may with leave of court, and not otherwise appeal to the Court of Appeal.

13. It therefore submits that this court’s jurisdiction in taxation matters is clearly spelt out, and is limited by statute, and the court would be arrogating itself a non-existent jurisdiction if it would entertain the present application.

14. As to matter of this court being functus officio, it has been submitted that, by dint of paragraph 11(3) of the Advocates Remuneration Order, the only recourse to a party against the courts decision would be an appeal to the Court of Appeal that the Advocates Act and the Rules are self-contained and do not provide for review against taxations citing the holding in the case Elikana Mukundi Gatimu(supra) and Orbit Chemical Industries Limited v Otieno Odek & company (supra) more so when judgment has already been entered pursuant to section 51(2) of the Act.

15. It is also urged that the application does not meet the conditions for a review order to issue there being no new matter discovered after the entry of judgment, or a mistake or error on the face of the record nor any other sufficient reason. Reliance has been placed in the Supreme Court case GoldenLime International Limited v BlueSea Shopping Mall Ltd & 3 others [2021] KESC 2 (KLR).

16. The respondent further submits that following the dismissal of the applicant’s reference, the certificate of taxation was final and the court lacks jurisdiction to entertain the application in any manner; and has therefore urged the court to dismiss the application as it cannot look at the merits of the demised application.

Analysis and Determination 17. In my considered view, the main issue that this court ought to determine is whether it has jurisdiction to entertain the application, being minded that anything a court of law does without jurisdiction is null and void. As stated in the Owners of the Motor vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1;“… a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything and without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”

18. Further, the Supreme Court of Kenya in the case of Samuel Kamau Macharia v KBC & 2 others, Civil Application No 2 of 2011 rendered that;“A court’s jurisdiction flows from either theconstitution or legislation or both… It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”

19. On taxation matters, the court draws its jurisdiction form the Advocates Act and the Advocates Remuneration Order and Rules thereunder; in particular paragraph 11 of the Advocates Remuneration Order allows the court to interfere with taxation matters. It states:“Objection to decision on taxation and appeal to Court of Appeal(1)Should any party object 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)……..(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

20. Before I proceed further, I find it necessary to state that the applicant (client), filed a reference against the decision of the taxing master on the November 8, 2021 which upon consideration, this court by its decision rendered on the May 5, 2022 found no merit thereof and dismissed it, and proceeded to enter judgment for the advocates; thus there is already a judgment on record.Paragraph 11(3) is categorical that:“Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with leave of thejudge, but not otherwise, appeal to the Court of Appeal.” (emphasis mine)

21. The applicant by the instant application seeks for an order of review to set aside the court’s orders issued on the May 5, 2022 dismissing its reference. The applicant did not obtain leave of the court to appeal as contemplated under paragraph 11(3) but opted to apply for an order of review and or setting aside of the ruling, and to grant leave to the applicant to file a notice of objection out of time, on the presumption that the first prayer for and setting aside of the court orders would be granted.

22. Essentially, the applicant has invoked the provisions of order 45 rule 1 of the Civil Procedure Rules on review of orders/judgments though I think he deliberately omitted to cite the said order, yet substantively submitted on the same.In the case of Otieno Ragot & Company Advocates (supra), the court acknowledged that matters of taxations are guided by the Advocates Act, but further rendered that the court may invoke the provisions of the Civil Procedure Rulesso long as they are not inconsistent with the provisions and objects of the Advocates Remuneration order.

23. On the other hand, the High Court in the case of Elikana Mukundi Gatimu and Orbit Chemical Industries Ltd (supra), held that the Advocates Act and the Advocates Remuneration Order are self- contained legislations, and make no provision for review of references against taxations.

24. The Supreme Court of Kenya in the GoldenLime International Limited (supra) laid the guidelines and principles in application for review under court’s discretion thus;i.….ii.Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the court;iii.An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.iv.In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the court, how the court erred in the exercise of its discretion or exercised it whimsically.v.During such review application, in focus is the decision of the court and not the merit of the substantive motion subject of the decision under review.vi.The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:a.as a result a wrong decision was arrived at; orb.it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.

25. Looking at the application before the court, and being cognizance of the manner the Supreme court in the GoldenLine International case above rendered itself; the applicant must show the manner in which the court erred in arriving at the decision it did, but not on the failures of the applicant; the misdirection in the exercise of its discretion leading to a wrong decision, and in what way the court was clearly wrong thus causing an injustice. It is upon the court’s satisfaction that it would then exercise it’s discretion in favour of the applicant.None of the above has been demonstrated. Indeed, the applicant’s advocates blame themselves for their failures in following the very clear and mandatory procedure laid down under paragraph 11(i) of the Advocates Remuneration Order.

26. It is also instructive to state that by the applicant’s instant application, the applicant sought an order to review and set aside orders of May 5, 2022 remains on record, dismissing the applicant’s reference application. As such, the judgment entered for the advocates/respondents on the same date May 5, 2022 remains on record, there being no application for its review or setting aside. A party is bound by it’s pleadings and a court is not allowed to fill in gaps in the parties pleadings.

27. To that extent then, even if the dismissal order is granted, and the application dated November 22, 2021 is reinstated, what becomes of the judgment on record? A court of law will not act in vain knowingly and will not make it is loath to making pronouncements on academic or theoretical issues of no practical use – JRNo 10 of 2020 Republic v Kenya Maritime Authority & another [2021] eKLR.With the judgment remaining intact, it would boil to an academic exercise to even consider setting aside the dismissal of the reference and leaving the judgment standing.

28. I agree with the respondent’s submission that, paragraph 11(3) of the Advocates Remuneration Order left no option to an applicant dissatisfied with the court’s dismissal of its reference to do anything more; may it be setting aside, or review, save with leave of the court, and no otherwise, to appeal to the Court of Appeal.It is not in dispute that the applicant did not obtain leave of the court to take one more step after the Reference was dismissed on the May 5, 2022. He did not seek leave to appeal or do any other thing. Even lodging an appeal without leave is not one of the options available to an applicant under paragraph 11(3). The order is completely silent on review or setting aside.

29. This resonate well with the Supreme Court decision in the GoldenLime International case that a review of exercise of discretion is not a right but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the court.The applicant having failed to pinpoint any wrong doing by the judge in its exercise of discretion in dismissing the reference, then, the exercise of discretion by the court cannot be exercised in it’s favour, as doing so would in my considered view be arrogating itself a none-existent jurisdiction in taxation matters that is clearly limited by statute.I find no sound submission by the applicant that an application for review being of a civil in nature does not defeat the object and purpose of the Advocates Act and therefore section 80 of the Civil Procedure Act and order 45(1) of the Rules cloth the court with jurisdiction. Had that been so, the Rules and orders under the Advocates Act would have stated so clearly.The applicant however failed to state the object and purpose of the Advocates Act so as to clarify on what basis its objects and purposes are not defeated. It is trite that whoever alleges must prove.

30. In the case of Peter Mwangi Macharia v Alphaxad Warotho Komu & 2 others [2019] eKLR, the court rendered itself on the doctrine of functus officio thus:“A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected”

31. As far as taxation matters are concerned, once the court has rendered itself on a reference, its duty thereof is finalized, save for correction of clerical errors and therefore becomes functus officio. By dint of paragraph 11(3) of the Advocates Remuneration Order, no further action is available to the court, including review or setting aside; which would in effect be going back to interrogate the merits of the application.

32. By the application under review, it is clear that the objective of the application is as stated; to set aside the dismissal order, to grant leave to the applicant to file a notice of objection out of time, and to reinstate the applicant’s reference. How would these prayers be granted without interrogating the merits of the application? This is not available to the court under order 45 Civil Procedure Rule.The court has not locked out the applicant from being heard, as it is a right for all parties granted under theConstitution. This is so because, in taxation matters, the laid down procedure ought to be followed, as stated under paragraph 11(3).

33. A party dissatisfied by the judge’s decision must obtain leave of court to challenge the decision. The Court of Appeal in the Patriotic Guards Ltd v James Kipchirchir Sambu [2018] eKLR emphasized that right.Article 159 (2) (d) of the 2010 Constitution is not a sanitizer for all wrong doings by applicants and or their Advocates who opt not to follow clear procedure as stipulated in various statutes. The Advocates Act and Remuneration Order are self-contained and all procedural steps are well stated and failure to abide by the said procedures cannot be cured by citing article 159 (2)(d), in my considered opinion.

34. Section 51(2) of the Advocates Act states that the certificate of taxation is final unless it has been set aside by the court and gives no option to the court to interfere with it any further, particularly when judgment has been entered. See Lubullellah & Associates Advocates v NK Brothers Ltd [2014] eKLR and Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited [2017] eKLR, where the court held that provisions of paragraph 11 of the Advocates Remuneration Order serves several purposes, and non- observance is not a mere technicality that can be pushed aside peremptorily as the applicant seems to suggest, upon total disregard of the requirements prior to and after filing of a reference against a taxing master’s decision. The ruling of this court dated May 5, 2022 re-affirmed the certificate of taxation upon which it entered judgment or the advocates. That judgment has not been set aside.Ultimately, for the above reasons, this court finds, and holds that it lacks the requisite jurisdiction to entertain the application. Having found so, the court therefore declines to make one more step and downs its tools in respect of the application under review.

35. Consequently, the application dated May 16, 2022 is hereby struck out with costs to the respondents.

36. This ruling shall apply to Misc Civil Application No E 112 of 2020.

Orders accordingly.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY, 2022JN MULWAJUDGE.