[2017] KEHC 2423 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 771 OF 2016

SAMUEL MUSAA NDOLO ...................................................APPELLANT

-V E R S U S –

AHMED SHAKEEL SHABBIR ..........................................RESPONDENTS

RULING

1) Samuel Musaa Ndolo, the appellant herein filed an action based on contract against Ahmed Shakeel Shabbir t/a Nashak (K) Ltd, the respondent herein, before the Chief Magistrate’s Court, Nairobi. In the end judgment was entered in favour of the appellant and against the respondent in the sum of ksh.1,156,117/=. Being aggrieved by the decision of the trial court, the respondent preferred an appeal in the High Court vide Nairobi H.C.C.A no. 537 of 2014 Ahmed Shakeel Shabbir =vs= Samuel Musaa Ndolo. On 10th March 2016, the aforesaid appeal was dismissed with costs to the appellant herein. Samuel Musaa Ndolo filed a bill of costs in respect of H.C.C.A no. 537 of 2014. The bill was eventually taxed on 13. 10. 2016 by the Deputy Registrar of this court who on 13. 12. 2016 issued a certificate of taxation. The appellant was aggrieved by the decision of the Taxing Officer hence he preferred this appeal.

2) On appeal, the appellant put forward the following grounds in his memorandum:

a. The learned registrar erred in holding that the appellant was not entitled to the costs.

b. The learned registrar erred in awarding the appellant costs of ksh.50,550/= and not kshs.164,575 as per the bill of cost.

c. The learned registrar erred in failing to award the sum of money used as court fees.

3) When served with the memorandum of appeal, Ahmed Shakeel Shabbir’s advocate filed a notice of preliminary objection to challenge the appeal. In the notice of preliminary objection, the respondent put forward the following grounds:

1. This honourable court has no jurisdiction to entertain, hear or determine this appeal for the reason that it offends Rule 11 of the Advocates (Remuneration) Order 2009.

2. This appeal is thus incurably defective and an abuse of the court process.

4) When the appeal came up for hearing, this court invited the parties to file and exchange written submission on the preliminary objection. I have considered the material placed before this court in support and against the preliminary objection. I have also considered both the oral and written submissions presented to this court. The main ground which may dispose of this appeal is the question of jurisdiction.

5) In his response to the preliminary objection, the appellant argued that the respondent had merely put forward a notice of preliminary objection without explaining what he finds objectionable to the appellant’s appeal. According to the appellant his appeal is not incurably defective. It is the submission of the respondent that the appeal offends the provision of paragraph 11 of the Advocates Remuneration Order. In other words the respondent is of the submission that the appellant was required to file a reference to this court in order to impugn the decision of the Taxing Officer which the appellant has failed to do.

6) With respect, I agree with the submissions of the respondent that pursuant to the provisions of paragraph 11 of the Advocates Remuneration Order, this court can only be seised with jurisdiction if the procedure laid down therein is followed. It is not in dispute that the appellant has not complied with provision of the Advocates Remuneration Order. No reference has been filed to challenge the decision on Taxation. The Court of Appeal in the case of Machira & Company Advocate vs Arthur K. Magugu (2012) e KLR and quoted in Hezekiah Oira T/A H. Oira Advocate v Kenya Broadcasting Corporation (2015) interalia that

“The appellate jurisdiction of any court is a creature of the statute and has to be exercised in accordance with the provisions of the statute creating it. With regard to the advocates bills of costs, we agree with the decision of Ringera J (as he then was) in Machira vs Magugu (1) that the Advocates Remuneration Order is a complete code which does not provide for appeals from the taxing master’s decisions. Rule 11 thereof provides for ventilation of grievances from such decisions through references to a judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used ...”

7) It is clear to me that the present appeal is not the one contemplated by the Advocates Remuneration Order. Therefore, it is against the laid down procedure. Consequently, the appeal is prematurely before this court and is in any event incurably defective.

8) The appeal is hereby ordered struck out with costs to the respondent.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondent