[2013] KEHC 152 (KLR)
The court found that the application for review was incompetent because it was brought under the Civil Procedure Act and Rules rather than under the Advocates Remuneration Rules, which specifically govern references arising from taxation of advocates' bills of costs. The applicant failed to demonstrate any new or...
Source-derived case information.
- Citation
- [2013] KEHC 152 (KLR)
- Parties
- Applicant: Lennah Koinange; Respondent: Majanja Luseno & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 314 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Dismissal of Stay of Execution
- Outcome
- application dismissed with costs to the respondent
- Judges
- MJA Emukule
- Legal Topics
- Review of Court Orders, Advocate Bill of Costs, Taxation Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lennah Koinange
Applicant
Majanja Luseno & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Dismissal of Stay of Execution
Legal Issues
- 1 Whether the applicant has established grounds for review under Order 45 rule 1 of the Civil Procedure Rules.
- 2 Whether the application for review is competent in the context of a reference under the Advocates Remuneration Rules.
- 3 Whether the applicant should have appealed instead of seeking review.
Ratio Decidendi
The court found that the application for review was incompetent because it was brought under the Civil Procedure Act and Rules rather than under the Advocates Remuneration Rules, which specifically govern references arising from taxation of advocates' bills of costs. The applicant failed to demonstrate any new or important matter, error on the face of the record, or other sufficient cause as required for review. The proper procedure for challenging the ruling was by way of appeal under Rule 11 of the Advocates Remuneration Order, not by review. The invocation of Article 159 of the Constitution does not excuse non-compliance with mandatory procedural requirements. Consequently, the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 10/05/2013 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISC. CIVIL APPLICATION NO. 314 OF 2012
LENNAH KOINANGE.............................................APPLICANT
VERSUS
MAJANJA LUSENO & CO. ADVOCATES.............RESPONDENT
RULING
1. The Applicant's Notice of Motion dated and filed on 10-5-2013 seeks a review of my Ruling made on 12-04-3013 dismissing the Applicant's Notice of Motion dated 5-09-2012 which sought a stay of execution of the Ruling by Hon J. Njoroge delivered on 24-08-2012.
2. The current Notice of Motion is purportedly brought under the provisions of Order 45, rule 1 and Order 51 rule 1 of the Civil Procedure Rules, 2010 Section 1A, 1B and 3A of the Civil Procedure Act, and all enabling provisions of the law. It was supported by the Affidavit of one J. Lilly Mwaura Advocate of the firm of Nyaberi & Co. Advocates.
3. The Motion was opposed by the Respondents who filed on 21-06-2013 grounds of opposition dated 11-06-2013 and stated that-
(1) there was no mistake or error on the face of the record;
(2) the Respondent/Applicant has not demonstrated or shown any new or important matter or evidence to warrant grant of the orders sought.
(3) The Motion is bad in law and should be dismissed with costs;
4. The Respondent's Advocates Firm took a hearing date for the Applicant's Motion and served the Hearing Notice (dated 6-11-2013) upon the Applicant's Advocates Firm on the same day. An Affidavit of Service sworn on 14-11-2013 was filed on 18-11-2013 before the hearing of the Motion subject of this Ruling. Mr. Anzala who appeared for the Respondents informed the court that he had telephoned Ms J. Lilly Mwaura Advocate who had sworn the Affidavit in support of the Motion, and was informed by her that she had left the firm of Nyaberi & Co Advocates. The said firm's landline went unanswered. With those submissions, I allowed Mr. Anzala to proceed ex parte and argue the application.
5. Mr. Anzala relied upon his written submissions dated 11-6-2013 together with the authorities cited therein. I have considered counsel's submissions as well as the authorities cited and the grounds of opposition and set out in the paragraphs following my opinion on the Applicant's notice of Motion.
6. In ordinary Civil Procedure Act and the Civil Procedure Rules, an applicant for review of the court's Judgment and Ruling must show-
discovery of new evidence or important matter which the Applicant could not with exercise of due diligence have had ordiscovered at the hearing of the matter subject of review
an error on the face of the record, or
some other sufficient cause (similar to new evidence or important matter and or error on the face of the records).
7. The application herein does not relate to an ordinary Civil Suit. The Application related to taxation of an Advocate Bill of Costs under the Advocates Act, (Cap 16 Laws of Kenya) and the Rules thereunder. And even if there were errors in the Ruling of 12-04-2013, no averments were made by the Applicant of any such errors. The result is that there is no basis of the Application even if it were arising out of an ordinary Civil action. But as pointed out, the Motion of 12-04-2013 related to a reference under Rule 11 of the Advocates Renumeration Rules. Any application in relation thereto ought to have been made in the Matter of the Advocates Act, under Advocates Renumeration Rules, and the court's inherent power under those provisions and not under the Civil Procedure Act or the rules thereunder. The Applicant's Notice of Motion dated 10th May 2013 was to that extent incompetent. Article 159 of the Constitution that the courts should dispense substantive justice without undue regarded to technicalities is no license for disregard of the law. That is the import of decisions such as Aboke Vs Akunja & Another [2008] KLR (E & P), and the older decisions such as LAKHANSHI BROTHERS LTD Vs. R. RASA & SONS [1966] EA. 313 at page 314.
8. For the reasons given, I find that the Reference in the Ruling of 12/4/2013 was incompetent. I find the application for Review of that Ruling is equally incompetent. The Applicant's proper course was to appeal against the Ruling of 12/04/2013. That is the procedure laid down by rule 11 of the Advocates Renumeration Order. I find no merit in the Notice of Motion dated 10/05/2013, and I dismiss it with costs to the Respondents.
9. It is so ordered.
Dated, signed and delivered at Nakuru this 17th day of December, 2013.
M. J. ANYARA EMUKULE
JUDGE