[2016] KEHC 3322 (KLR)
The court held that it lacked jurisdiction to render an opinion on the Taxing Officer's order for cross-examination in the absence of a formal reference or review application. Since no appeal or review had been filed to challenge the Taxing Officer's order, and the matter was not properly before the court, the court...
Source-derived case information.
- Citation
- [2016] KEHC 3322 (KLR)
- Parties
- Applicant: Mwangi Keng’ara & Co. Advocates; Respondent: Invesco Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 230 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Referral From Taxing Officer Regarding Cross Examination Order
- Outcome
- declined jurisdiction; file returned to Taxing court
- Legal Topics
- Taxation of Costs, Cross Examination on Affidavit, Preliminary Objection, Reference Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mwangi Keng’ara & Co. Advocates
Applicant
Invesco Assurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Referral From Taxing Officer Regarding Cross Examination Order
Legal Issues
- 1 Whether the High Court can render an opinion on the Taxing Officer's order for cross-examination without a formal reference before it.
- 2 Whether the order for cross-examination of the advocate on affidavit in response to a preliminary objection was properly before the court.
Ratio Decidendi
The court held that it lacked jurisdiction to render an opinion on the Taxing Officer's order for cross-examination in the absence of a formal reference or review application. Since no appeal or review had been filed to challenge the Taxing Officer's order, and the matter was not properly before the court, the court declined to intervene. The file was directed to be returned to the Taxing court for appropriate proceedings. The court emphasized that its intervention is only triggered by a competent application, such as a reference under the Advocates (Remuneration) Order, and not by informal referral or resistance to the Taxing Officer's directions.
Court Disposition
declined jurisdiction; file returned to Taxing court
Orders
- The file is to be taken back to the Taxing court to proceed appropriately.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPL. NO. 230 OF 2015
IN THE MATTER OF THE ADVOCATES ACT, CHAPTER 16 LAWS OF KENYA AND THE ADVOCATES (REMUNERATION) (AMENDMENT) ORDER , 1997 LEGLA NOTICE NO. 159 OF 17/11/2006 AND NO. 550 OF 11/4/2014
MWANGI KENG’ARA & CO. ADVOCATES...........ADVOCATE
AND
INVESCO ASSURANCE COMPANY LIMITED........... CLIENT
ARISING FROM
IN THE RESIDENT MAGISTRATE’S COURT AT A GATUNDU CIVIL SUIT NO. 504 OF 2003
PENINNAH NJOKI NJOROGE............................................. PLAINTIFF
V E R S U S –
PETER GITAU MWILIA..............................................1ST DEFENDANT
JOHN MBURU MWAURA............................................2ND DEFENDANT
RULING
[1] On 2. 11. 2015, Hon. Makungu, the Deputy Registrar of this court and the Taxing Officer in this matter made an order granting leave to client/respondent to cross-examine the Advocate Applicant over the affidavit sworn on 13th October 2015 and filed in response to the Preliminary Objection dated 27. 7.2015.
[2] Miss Mwangi, learned advocate for the Advocate Applicant applied before the Taxing Officer to determine the question as to whether it was appropriate to grant the order for leave to cross-examine a deponent of an affidavit when the preliminary Objection was pending. Miss Okoth who held brief for Mr. King’ara was of the view that there was nothing wrong to cross examine the deponent since the affidavit was filed in response to the preliminary objection. Hon. Makungu instead of deciding the issue referred the same to this court to render an opinion pursuant to paragraph 12 of the Advocates (Remuneration) Order.
[3] Mr. King’ara learned advocate for the client beseeched this court to direct the Advocate/Applicant to file a reference so that this court can be seised of the matter.
[4] Miss Mwangi was of the view that this court can rightly give directions without the filing of a formal reference.
[5] I have carefully considered the rival submissions. I have also taken into account the provisions of paragraph 12 of the Advocates (Remuneration) Order. There is no doubt that the learned Taxing Officer has made an order directing the Advocate to take the witness stand to be cross-examined on his affidavit in response to the preliminary objection. There is also no dispute that parties have filed written submissions over the preliminary objection and what is pending is the cross-examination of the advocate. It would appear the advocate is indirectly resisting the order. No appeal nor review has been filed to challenge the order. There is therefore no basis for the file to be placed before this court. This court can only render its opinion if it is formally approached by way of a reference or in the alternative parties can approach the Taxing court to determine the issue by way of review. In the end there is no competent application before this court to render its opinion. Consequently, the file should be taken back to the Taxing court to proceed appropriately
Dated, Signed and Delivered in open court this 1st day of September, 2016.
J. K. SERGON
JUDGE
In the presence of:
......................................................... for the Applicant
........................................................ for the Respondent