[2004] KEHC 1656 (KLR)
The court found that the previous application was struck out, not dismissed, and that the basis for striking it out was the absence of reasons from the taxing officer. In the present application, the taxing officer had since provided reasons for her decision on taxation. This constituted a material change in...
Source-derived case information.
- Citation
- [2004] KEHC 1656 (KLR)
- Parties
- Applicant: Nyamogo & Nyamogo Advocates; Respondent: Kenya Bus Services Ltd
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 42 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JK Sergon
- Legal Topics
- Taxation of Costs, Functus Officio, Preliminary Objection, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyamogo & Nyamogo Advocates
Applicant
Kenya Bus Services Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court is functus officio in relation to the current application following its earlier ruling in a similar matter.
- 2 Whether the preliminary objection raised by the respondent has merit in light of the previous application being struck out rather than dismissed.
- 3 Whether the court has jurisdiction to hear the reference after the taxing officer has given reasons for her decision.
Ratio Decidendi
The court found that the previous application was struck out, not dismissed, and that the basis for striking it out was the absence of reasons from the taxing officer. In the present application, the taxing officer had since provided reasons for her decision on taxation. This constituted a material change in circumstances, distinguishing the current application from the earlier one. Therefore, the court was not functus officio and retained jurisdiction to hear and determine the matter on its merits. The preliminary objection was found to have no basis and was dismissed with costs to the objector.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the objector.
- The summons dated 12th March 2004 may be listed for hearing at the Civil Registry on a priority basis.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
MISC APPL. 42 OF 2003
NYAMOGO & NYAMOGO ADVOCATES ……...…. APPLICANT
VS
KENYA BUS SERVICES LTD
JONATHAN KITUMBA NDUNGI ……. RESPONDENT
(In the matter of An order against Kenya Bus Services Ltd in favour of Nyamogo & Nyamogo, Advocates)
AND
(In the matter of a reference from the decision of the Deputy Registrar Ms. Maloba made on 28th March 2003 on the taxation of the Plaintiff’s Bill of Costs. (A certified copy of the Order, Proceedings and Ruling and reasons for the ruling are attached hereto)
KENYA BUS SERVICES LTD ……………… OBJECTOR
VS
NYAMOGO & NYAMOGO ADVOCATES ……. RESPONDENT
R U L I N G
Mr. Nyamodi Nyamogo who appeared for the Respondent raised a preliminary objection against the objector’s chamber summons dated 11th March 2004 brought under paragraph 11 of the Advocates Remuneration order.
The objector in the aforesaid summons had sought for the following orders:
(a) For leave to have the summons heard during the court vacation.
(b) For costs allowed by the taxing officer in miscellaneous Appl. No. 42 of 2003 against the objector to be reviewed and reduced or struck out or remitted wit h appropriate directions to another taxing officer as the court shall deem fit for consideration.
(c) A stay of execution of the Deputy Registrar’s order of 28. 3.2003 pending the determination of this reference.
(d) The taxed amount to be deposited into this court upon such terms as may be fair and just.
The gist of the Respondent’s objection is that this court had dismissed an application with similar facts save that the objector was different vide Busia H.C. Misc. No. 271 of 2003 and that the objector has preferred an appeal against the said decision which was made on 12th March 2004. Mr. Nyamogo was of the view that by virtue of that decision this court became funtus officio. This court was therefore urged to strike out the application because it is not seised with jurisdiction until the intended appeal by the objector is heard and determined.
Mr. Nyangwencha who appeared for the objector opposed the preliminary objection by stating that the same lacked merit. He pointed out to this court that the objector’s application dated 16th April 2003 was struck out and not dismissed as alleged by the Respondent hence the objector had a right to commence this application.
I have keenly perused the ruling delivered on 12. 3.2004 in Busia H.C. Misc. application No. 271 of 2003. I have also considered the submissions presented to me by the learned advocates. To begin with I have found out that the chamber summons dated 16th April 2003 was struck out but not dismissed as submitted by Mr. Nyamogo for the Respondent.
I have also noted that the taxing officer had not given her reasons at the time when this court struck out the application dated 16th April 2003 and this was the basis of my decision. However in the present application the taxing officer has already given her reasons for her decision on taxation. I think this is the main point of departure from the application which was struck out.
It is clear from the above findings that this court is not functus officio. I have jurisdiction to hear and determine the matter on its merits. Consequently I have come to the conclusion that the preliminary objection has no basis. The same is dismissed with costs to the objector. The summons dated 12th March 2004 may be listed for hearing at the Civil Registry on a priority basis.
DATED AND DELIVERED THIS 11th DAY OF May 2004
J.K. SERGON
JUDGE