[2021] KEHC 9510 (KLR)
The High Court found that it lacked jurisdiction to entertain the application to set aside the decision of the taxing officer regarding party and party Bill of Costs, as such matters are statutorily vested in the Deputy Registrar under the Advocates Remuneration Order, 2019. The applicant conceded that the matter...
Source-derived case information.
- Citation
- [2021] KEHC 9510 (KLR)
- Parties
- Applicant: Thomas Kimagut Sambu; Respondent: Muhoroni Sugar Co. Ltd (Under Receivership); Respondent: Francis Ooko; Respondent: Harun Kirui
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 44 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application reinstated and referred to Deputy Registrar; costs to abide the cause.
- Judges
- AN Ongeri
- Legal Topics
- Jurisdiction of Court, Taxation of Costs, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Kimagut Sambu
Applicant
Muhoroni Sugar Co. Ltd (Under Receivership)
Respondent
Francis Ooko
Respondent
Harun Kirui
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the High Court has jurisdiction to set aside the decision of the taxing officer regarding party and party Bill of Costs.
- 2 Whether the application should be reinstated and referred to the Deputy Registrar for determination.
- 3 Whether costs should be awarded given the procedural error in filing.
Ratio Decidendi
The High Court found that it lacked jurisdiction to entertain the application to set aside the decision of the taxing officer regarding party and party Bill of Costs, as such matters are statutorily vested in the Deputy Registrar under the Advocates Remuneration Order, 2019. The applicant conceded that the matter was filed before the wrong court, attributing the error to the Registry. The court, therefore, reinstated the applicant's application and directed that the file be placed before the Deputy Registrar for determination, as only the Deputy Registrar has the authority to hear and determine such matters. The costs of the application were ordered to abide the outcome of the cause.
Court Disposition
Application reinstated and referred to Deputy Registrar; costs to abide the cause.
Orders
- The applicant's application dated 13th October, 2020 is reinstated.
- The file is to be placed before the Deputy Registrar for determination.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
MISC. CIVIL CASE NO. 44 OF 2019
THOMAS KIMAGUT SAMBU..............................................................................APPLICANT
- V E R S U S -
MUHORONI SUGAR CO. LTD (Under Receivership)............................1ST RESPONDENT
FRANCIS OOKO........................................................................................2ND RESPONDENT
HARUN KIRUI............................................................................................3RD RESPONDENT
R U L I N G
1. The Application coming for consideration is dated 28th October, 2020 seeking the following orders:-
(i) THAT this Court be pleased to set aside the order dismissing the Application dated 13th October, 2020 for non-attendance by the Applicant.
(ii) THAT the Application dated 13th October, 2020 be reinstated and heard inter partes on merit and that that stay be granted pending inter partes hearing of the Application.
(iii) THAT the costs of the Application be in the cause.
2. The Application is based on the ground on the face of it and supported by the Affidavit of FAUSTINE OSEWE sworn on 28th October, 2020 in which he stated that he was the lawyer representing the Applicant and that he was not allowed to join virtual court and he later learnt that the matter proceeded in open court while he was in another court.
3. It is further deposed in the Supporting Affidavit that unless the said Application is reinstated the Applicant will suffer irreparably since he had settled the decretal sum in the suit that led to the Miscellaneous Application.
4. The Respondent filed a Notice of Preliminary Objection (NOPO) in response to the Application dated 28th October, 2020 on the following grounds:-
(i) THAT the matter relates to taxation of party and party Bill of Costs which matter is heard and determined before the Deputy Registrar and if the Applicant is aggrieved he should file a reference.
(ii) THAT similarly if the Applicant seeks to set aside such a decision he should file the Application before the Deputy Registrar.
(iii) THAT this court is not seized with the Jurisdiction to set aside the decision of taxing officer.
5. The parties filed brief written submissions in the Application dated 28th October, 2020 which I have duly considered. The Applicant submitted that the matter was filed through the online e-filing and ought to have been placed before the Deputy Registrar. The Applicant requested the court to refer the matter to the Deputy Registrar and submitted that the Applicant should not be condemned to pay costs as the mistake was on the part of the Registry.
6. The Respondent stated in their submissions that this court lacks jurisdiction to entertain this matter and the same ought to be filed before the Deputy Registrar, the law is very clear with regards to taxation, paragraph 10 of the Advocates Remuneration Order, 2019 prescribes that the taxation of bills is vested on the registrar, district registrar or deputy registrar of the High Court, in the absence of a registrar, an officer appointed by the Chief Justice whereas paragraph 11 of the Advocates Remuneration Order, 2019 provides an elaborate and detailed procedure on how to review/set aside a Taxing Officer’s decision.
7. The Respondent submitted that this Court lacks jurisdiction to hear this matter and further that the same ought to have been filed before the Deputy Registrar.
8. I find that the Applicant has conceded that this matter was filed before the wrong court. The Applicant is passing the blame to Registry Court Clerks.
9. I reinstate the Applicant’s Application dated 13th October, 2020 and direct that this file be placed before the Deputy Registrar to deal as the court lacks the jurisdiction to handle matters related to taxation.
10. The costs of the Application dated 28th October, 2020 to abide the cause.
Delivered, signed and dated at Kericho this 29th day of January, 2021.
A. N. ONGERI
JUDGE