[2005] KEHC 1206 (KLR)
The court held that the procedure under Paragraph 11(2) of the Advocates Remuneration Order is mandatory and requires that a chamber summons challenging the taxing officer's decision must be served on all parties concerned. The applicant's failure to serve the application on the respondent rendered the application...
Source-derived case information.
- Citation
- [2005] KEHC 1206 (KLR)
- Parties
- Applicant: Nyamogo & Nyamogo; Respondent: Bernard Wachira Gaita
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 817 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Reference Against Taxing Officer's Decision
- Outcome
- application struck out for incompetence due to failure to serve on all parties
- Legal Topics
- Taxation of Costs, Advocates Remuneration Order, Procedure for References
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyamogo & Nyamogo
Applicant
Bernard Wachira Gaita
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Reference Against Taxing Officer's Decision
Legal Issues
- 1 Whether a reference against the taxing officer's decision can be heard ex parte contrary to the requirements of Paragraph 11 of the Advocates Remuneration Order.
- 2 Whether failure to serve the chamber summons on all parties renders the application incompetent.
Ratio Decidendi
The court held that the procedure under Paragraph 11(2) of the Advocates Remuneration Order is mandatory and requires that a chamber summons challenging the taxing officer's decision must be served on all parties concerned. The applicant's failure to serve the application on the respondent rendered the application incompetent. The court therefore struck out the application for non-compliance with the procedural requirement, emphasizing that ex parte proceedings are not permitted in such references.
Court Disposition
application struck out for incompetence due to failure to serve on all parties
Orders
- The application is struck out as incompetent.
- Leave to appeal is granted.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA, NAIROBICOMMERCIAL DIVISION, MILIMANIMisc Application 817 of 2004NYAMOGO & NYAMOGO ……..………….……………..……….... APPLICANT
VERSUSBERNARD WACHIRA GAITA …………………..……..….…… RESPONDENTRULING
The application before the court is dated 26th, May 2005, and filed in court on the same day. It is a reference against a decision of the taxing officer, and the same is brought under Paragraph 11(2) and (3) of the Advocates Remuneration Order.
The application is made by way of a chamber summons –ex parte. Asked by the court why he was making the application ex parte, learned counsel for the applicant replied that he was entitled to proceed ex parte. Paragraph 11 of the requisite Order is in the following words –
"(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) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen 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."
Contrary to the position taken by counsel, this application cannot proceed ex parte. The relevant rule makes it obligatory for the application to be"served on all the parties concerned". This procedure has not been observed in this matter. The application is therefore incompetent at this stage and is accordingly struck out.
Leave to appeal is hereby granted.
Dated and delivered at Nairobi this 1st day of August 2005.
L NJAGI
JUDGE