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Republic V Public Health Officer Trans-Nzoia Ex-parte Hesbon Okoth Mudenyo [2015] eKLR

Case Number: Misc. Cause 15 of 2015 Date Delivered: 11 Jun 2015

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Republic v The Public Health Officer Trans-Nzoia Ex-parte Hesbon Okoth Mudenyo

Citation: Republic V Public Health Officer Trans-Nzoia Ex-parte Hesbon Okoth Mudenyo [2015] eKLR

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Andrew Sila V Mwaniki David & 2 Others [2015] eKLR

Case Number: Civil Appeal 210 of 2012 Date Delivered: 11 Jun 2015

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Andrew Sila v Mwaniki David, Thomas Muasya Alias Thomas Kituka & Liz Jacklyne Kyulu

Citation: Andrew Sila V Mwaniki David & 2 Others [2015] eKLR

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Charles Nyaga Njeru V Independent Electrol And Boundaries Commission & Another [2015] eKLR

Case Number: Election Petition Appeal 3 of 2013 Date Delivered: 11 Jun 2015

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Charles Nyaga Njeru v Independent Electrol and Boundaries Commission & Nevert Ntwiga

Citation: Charles Nyaga Njeru V Independent Electrol And Boundaries Commission & Another [2015] eKLR

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Hirbaye Nane Shege & 2 Others V Mako Sheikh Yassin [2015] eKLR

Case Number: Misc. Civil Application 18 of 1998 Date Delivered: 11 Jun 2015

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Hirbaye Nane Shege, Mohamed Nane Shege & Shege Osman Nane v Mako Sheikh Yassin

Citation: Hirbaye Nane Shege & 2 Others V Mako Sheikh Yassin [2015] eKLR

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Eric Peter Wanjau V Margaret Kasera & 5 Others [2015] eKLR

Case Number: Environment and Land Case 712 of 2014 Date Delivered: 11 Jun 2015

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Eric Peter Wanjau v Margaret Kasera,Teresia Nasieku Kinela, Samuel Kinela,Samuel Mutunkei, John M. Kinyua,Richard M. Kinyua & Betty Batuli Montet

Citation: Eric Peter Wanjau V Margaret Kasera & 5 Others [2015] eKLR

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Dismas O Kisika V Ministry Of Education Science & Technology & Another [2015] eKLR

Case Number: Miscellaneous Application 27 of 2014 Date Delivered: 11 Jun 2015

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Dismas O Kisika v Ministry of Education Science & Technology & Attorney General

Citation: Dismas O Kisika V Ministry Of Education Science & Technology & Another [2015] eKLR

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Silas Nyaga Ireri V James Nyaga Ireri [2015] eKLR

Case Number: Succession Cause 382 of 2002 Date Delivered: 11 Jun 2015

Judge: Florence Nyaguthii Muchemi

Court: High Court at Embu

Parties: Silas Nyaga Ireri v James Nyaga Ireri

Citation: Silas Nyaga Ireri V James Nyaga Ireri [2015] eKLR

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In Re Les Belles Savages Ltd [2015] eKLR

Case Number: Winding Up Cause 23 of 2009 Date Delivered: 11 Jun 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: In re Les Belles Savages Ltd

Citation: In Re Les Belles Savages Ltd [2015] eKLR

A refusal by the Court to appoint an official receiver under section 231 of the Companies Act cannot affect the appointment of a receiver under section 230 of the Companies Act.

In re Les Belles Savages Ltd [2015] eKLR

Winding Up Cause 23 Of 2009

In The High Court of Kenya at Nairobi

F. Gikonyo J

June 11, 2015

Reported by Andrew Halonyere and John Ribia Wainaina

Brief facts:

The applicant applied for a change of advocate under Order 9 Rule 9 of the Civil Procedure Rules, 2010. The applicant had also applied for the Court to appoint an official receiver for winding up under section 230 of the Companies Act (cap 486)

The respondent filed a preliminary objection stating that the court had heard and determined an earlier application seeking for the appointment of an official receiver under section 231 of the Companies Act. The respondent claimed that the applicant’s application violated the principle of res judicata.

Issues:

  1. Whether the court could allow a change of advocate by the client under Order 9 Rule 9 of the Civil Procedure Rules, 2010.
  2. Whether the court was mandated to appoint an official receiver under section 230 of the Companies Act if an earlier application to appoint an official receiver was denied under section 231 of the Companies Act and whether such amounted to res judicata.

Company Law - winding up – appointment of an official receiver for winding up– appointment of an official receiver for bankruptcy -whether the court was mandated to appoint an official receiver under section 230 of the Companies Act if an earlier application to appoint an official receiver was denied under section 231 of the Companies Act -Companies Act, (cap 486); section 230.

Company Law – winding up-winding up by the court - appointment of an official receiver by the Court – Companies Act, (cap 486); section 231.

Civil Procedure and practice – preliminary objection – res judicata - respondents objecting to an application to appoint an official receiver – whether an application to appoint an official receiver under section 230 of the Companies Act where an earlier application to appoint an official receiver was denied under section 231 of the Companies Act amounts to res judicata – Civil Procedure Act, 2010, section 7.

Civil Procedure and Practice – change of advocate- change of advocate after judgement has been passed – Civil Procedure Rules, 2010, Order 9 Rule 9.

Companies Act, (cap 486)

Section 230

  1. For the purposes of this Act so far as it relates to the  winding up of companies by the court, “official receiver” means the  official receiver attached to the court for bankruptcy purposes.
  2. Any such officer shall, for the purpose of his duties under this  Act, be styled the official receiver

Companies Act, (cap 486)

Section 231

If, in the case of the winding up of any company by the  court it appears to the court desirable, with a view to securing the more  convenient and economical conduct of the winding up, that some officer  other than the person who would by virtue of section 230 be the official  receiver should be the official receiver for the purposes of that winding  up, the court may appoint that other officer to act as official receiver in  that winding up, and the person so appointed shall be deemed to be the  official receiver in that winding up for all the purposes of this  Act.

Civil Procedure Rules, 2010, Order 9 Rule 9

When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—

  1. upon an application with notice to all the parties
  2. Upon consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.

Held:

  1. Though Order 9 Rule 9 was enacted to stop unscrupulous clients from changing advocates so as not to pay the legal dues of advocates, applications under Order 9 Rule 9 should also be seen within the right of an applicant to legal representation. The Court could not justify denying the applicant a right to legal counsel after the respondent failed to provide evidence to prove the unpaid fees.
  2. The concepts of res judicata and functus officio share the common objective to bring finality to litigation. The two concepts have clear distinctions. Functus officio prohibits a court from exercising authority in a suit where the same court had determined the suit completely. Res Judicata ensures that parties who have gone through litigation are not subjected to the same legal tussle again on matters that are directly and substantially similar.
  3. As a general rule, once an issue has been raised and distinctly determined between two parties, neither party can be allowed to raise the same issue in the same or subsequent proceedings; save for exceptional circumstances.
  4. The Courts should guard from litigants who seek to evade the doctrine of res judicata by introducing new causes of action to seek the same remedy before the court. The respondent objected to the applicant’s application on grounds of res judicata, he claimed that a similar application had been heard and determined by the Court.
  5.  The applicant brought an application seeking to appoint an official receiver to wind up the company under section 231 of the Companies Act. The applicant cited the wrong section; appointment of an official receiver to wind up the company was provided for under section 230 of the Companies Act.  The court treated the application as if it was brought under section 230, the court acted within the principles of justice enshrined in the Constitution of Kenya, 2010.
  6. In so far as winding up of a company by the court was concerned, section 230 of the Companies Act applied as a matter of law.  The official receiver for purposes of winding up of a company was the Official Receiver attached to the court for bankruptcy purposes.
  7.  The former application before the court was brought under section 231 of the Companies Act. It was heard and determined within the law applicable. An application under section 230 of the Companies Act was a different matter, section 230 designates the official receiver, and there was no order to the contrary which existed in the suit. The Court’s decision to deny appointing a person other than the official receiver to act as the receiver of the company was under section 231 and could not affect the law under section 230 of the Companies Act.
  8. The applicant could not have brought the whole of the case, including the appointment of an official receiver in the former application. The application before court was not res judicata.
  9. No person could successfully argue that the Applicant ought to have brought the whole of his case, including appointment of official receiver in the earlier application. As such, the application was not res judicata.

Application allowed; each party to bear its own costs.

 

Cases

East Africa

  1. ET v Attorney General & another Petition No 212 of 2011 – (Explained)
  2. In re Chetambe Estate Ltd Winding Up Cause No 1 of 2005 – (Mentioned)
  3. In re East African Road Services Ltd Winding Up Cause No 11 of 1991 – (Mentioned)
  4. Kenya Hotel Properties Ltd v Willisden Investments Ltd & 4 others Civil Apllication No 24 of 2012– (Mentioned)
  5. Lotta v Tanaki [2003] 2 EA 556 – (Mentioned)
  6. Omondi v National Bank of Kenya Ltd & 2 others [2001] KLR 579; [2001] 1 EA 177 – (Mentioned)
  7. Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others Civil Appeal No 36 of 1996 – (Explained)

India

  1. Madhusudan Gordhandas & Co v Madhu Woolen Industries Pvt Ltd (1971) 3 Scc 632 – (Mentioned)

United Kingdom

  1. North West Water Ltd v Binnie & Partners [1990] 3 All ER 547 – (Explained)
  2. Fidelitas Shipping Co Ltd v V/O Exportchleb [1996] 1 QB 630; [1965] 2 All ER 4 – (Explained)

Statutes

East Africa

  1. Civil Procedure Act (cap 21) sections 1A, 7, 113 – (Interpreted)
  2. Civil Procedure Rules (cap 21 Sub Leg) order 9 rule 9,(a) – (Interpreted)
  3. Companies Act (cap 486) section 227,230,231,236 – (Interpreted)
  4. Constitution of Kenya, 2010 – In general- (Interpreted)

Advocates

  1. M/S Kounah & Co Advocates for the Applicant.
  2. Mr Rustam Hira instructed by M/S Rustam Hira  & Co Advocates for the Respondent.

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Lois Wairimu Magua V Henry Keter Chepsengeny & 5 Others [2015] eKLR

Case Number: ELC 163 of 2014 Date Delivered: 11 Jun 2015

Judge: Munyao Sila

Court: Environment and Land Court at Nakuru

Parties: Lois Wairimu Magua v Henry Keter Chepsengeny & 5 others

Citation: Lois Wairimu Magua V Henry Keter Chepsengeny & 5 Others [2015] eKLR

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Josephat Mwaura Thuo V Loise Wambui Kahenya [2015] eKLR

Case Number: Environment & Land Case160 of 2012 Date Delivered: 11 Jun 2015

Judge: Munyao Sila

Court: Environment and Land Court at Nakuru

Parties: Josephat Mwaura Thuo v Loise Wambui Kahenya

Citation: Josephat Mwaura Thuo V Loise Wambui Kahenya [2015] eKLR

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Stephen Maina Kimanga & 4 Others V Lucy Waithira Mwangi & 2 Others [2015] eKLR

Case Number: Civil Case 183 of 2014 Date Delivered: 11 Jun 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Stephen Maina Kimanga & 4 others v Lucy Waithira Mwangi & 2 others

Citation: Stephen Maina Kimanga & 4 Others V Lucy Waithira Mwangi & 2 Others [2015] eKLR

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Madara Evans Okanga Dondo V Kiarie Nganga [2015] eKLR

Case Number: Environment & Land Case 108 of 2012 Date Delivered: 11 Jun 2015

Judge: Munyao Sila

Court: Environment and Land Court at Nakuru

Parties: Madara Evans Okanga Dondo v Kiarie Nganga

Citation: Madara Evans Okanga Dondo V Kiarie Nganga [2015] eKLR

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Republic V Chairman Amagoro Land Disputes. Tribunal & Another Ex-Parte Paul Mafwabi Wanyama [2015] eKLR

Case Number: Judicial Review 10 of 2010. Date Delivered: 11 Jun 2015

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: Republic v Chairman Amagoro Land Disputes. Tribunal & Jacinta Papa Ex-Parte Paul Mafwabi Wanyama

Citation: Republic V Chairman Amagoro Land Disputes. Tribunal & Another Ex-Parte Paul Mafwabi Wanyama [2015] eKLR

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David Oprong George V Norah Adiambo Omuse (as Legal Representative Of Basil Pamba Okomuli (Deceased) [2015] eKLR

Case Number: ELC.9 of 2012 Date Delivered: 11 Jun 2015

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: David Oprong George v Norah Adiambo Omuse (as legal Representative of Basil Pamba Okomuli (Deceased)

Citation: David Oprong George V Norah Adiambo Omuse (as Legal Representative Of Basil Pamba Okomuli (Deceased) [2015] eKLR

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Mohammed Baraka & 4 Others V John Ngaira Sabwa & 3 Others [2015] eKLR

Case Number: Civil Suit 592 of 1998 Date Delivered: 11 Jun 2015

Judge: Fred Andago Ochieng

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Mohammed Baraka, Francis Sabwa, Simon Mbogo Muchiri, Wanjiru Nderitu & Lucy Mwaura v John Ngaira Sabwa, National Bank Of Kenya Limited, Igainya Limited & Chief Land Registrar, Nairobi

Citation: Mohammed Baraka & 4 Others V John Ngaira Sabwa & 3 Others [2015] eKLR

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Nicky Njuguna & 3 Others V Registrar Of Trade Unions & Another [2015] eKLR

Case Number: Appeal 1 of 2007 Date Delivered: 10 Jun 2015

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Nicky Njuguna, Stephen M Kyalo, Stephen M Karani & Paul Gichuru Marua v Registrar Of Trade Unions & Central Organization Of Trade Unions (Kenya)

Citation: Nicky Njuguna & 3 Others V Registrar Of Trade Unions & Another [2015] eKLR

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Jared Kangwana & Another V Samson Keengu Nyamweya & Another [2015] eKLR

Case Number: Civil Suit 431 of 2010 Date Delivered: 10 Jun 2015

Judge: Fred Andago Ochieng

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Jared Kangwana & Monarch Group Limited v Samson Keengu Nyamweya & Boin Holdings Limited

Citation: Jared Kangwana & Another V Samson Keengu Nyamweya & Another [2015] eKLR

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In Re Bhudialalajiravji [2015] eKLR

Case Number: Bankruptcy Cause 10 of 2013 Date Delivered: 10 Jun 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Bhudialalajiravji

Citation: In Re Bhudialalajiravji [2015] eKLR

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Victor Anamanjia Okusimba V Mumias Sugar Company Ltd [2015] eKLR

Case Number: Cause 62 of 2015 Date Delivered: 10 Jun 2015

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Victor Anamanjia Okusimba v Mumias Sugar Company Ltd

Citation: Victor Anamanjia Okusimba V Mumias Sugar Company Ltd [2015] eKLR

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In Re Bhudialalajiravji (Debtor) [2015] eKLR

Case Number: Bankruptcy Cause 10 of 2013 Date Delivered: 10 Jun 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: In re Bhudialalajiravji (Debtor)

Citation: In Re Bhudialalajiravji (Debtor) [2015] eKLR

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Selestica Limited V Gold Rock Development Ltd [2015]

Case Number: Civil Appeal 48 of 2015 Date Delivered: 10 Jun 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Selestica Limited v Gold Rock Development Ltd

Citation: Selestica Limited V Gold Rock Development Ltd [2015]

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Lydia Chepkosgei Mutai V Kenya Power Limited [2015] eKLR

Case Number: Cause No. 312 Of 2013 Date Delivered: 10 Jun 2015

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Lydia Chepkosgei Mutai v Kenya Power Limited

Citation: Lydia Chepkosgei Mutai V Kenya Power Limited [2015] eKLR

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Christ Is The Answer Ministries V Maureen Muhati Oyalo [2015] eKLR

Case Number: Cause 2195 of 2014 Date Delivered: 10 Jun 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Christ Is The Answer Ministries v Maureen Muhati Oyalo

Citation: Christ Is The Answer Ministries V Maureen Muhati Oyalo [2015] eKLR

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Joseph Ojwang’ Oundo V National Environment Management Authority & 8 Others [2015] eKLR

Case Number: Petition Case 8 of 2014 Date Delivered: 10 Jun 2015

Judge: Samwel Ndungu Mukunya

Court: Environment and Land Court at Busia

Parties: Joseph Ojwang’ Oundo v National Environment Management Authority, Africa Polysack Limited, Busia Sugar Industries Limited, Water Resources Management Authority, Lake Victoria North Water Board, County Government of Busia, Kenya Sugarcane Growers Association, Buhayo Council of Elders & Amos Wako Senator Busia County

Citation: Joseph Ojwang’ Oundo V National Environment Management Authority & 8 Others [2015] eKLR

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Samuel Njenga V Augostino Onanda & Anothers[2015]eKLR

Case Number: Civil Appeal 413 of 2014 Date Delivered: 10 Jun 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Samuel Njenga v Augostino Onanda & anothers

Citation: Samuel Njenga V Augostino Onanda & Anothers[2015] eKLR

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Republic V Isaiah Gatobu Muthamia [2015] eKLR

Case Number: HCR 16 of 2015 Date Delivered: 10 Jun 2015

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Isaiah Gatobu Muthamia

Citation: Republic V Isaiah Gatobu Muthamia [2015] eKLR

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Ali (Alias)Alvin Safari Ngala V Glory Car Hire Tours & Safaris Mombasa Ltd [2015] eKLR

Case Number: Cause 335 of 2013 Date Delivered: 10 Jun 2015

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: Ali (Alias)Alvin Safari Ngala v Glory Car Hire Tours & Safaris Mombasa Ltd

Citation: Ali (Alias)Alvin Safari Ngala V Glory Car Hire Tours & Safaris Mombasa Ltd [2015] eKLR

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Banking Insurance & Finance Union (K) V Agricultural Finance Corporation [2015] eKLR

Case Number: Cause 2113 of 2012 Date Delivered: 10 Jun 2015

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Banking Insurance & Finance Union (K) v Agricultural Finance Corporation

Citation: Banking Insurance & Finance Union (K) V Agricultural Finance Corporation [2015] eKLR

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Republic V Stephen Mururu & Another [2015] eKLR

Case Number: Criminal Case 18 of 2015 Date Delivered: 10 Jun 2015

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Stephen Mururu & Naftali Muriungi

Citation: Republic V Stephen Mururu & Another [2015] eKLR

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David Cullen V Medical Superitendent Kitale District Hospital & Another [2015] eKLR

Case Number: Land Case 83 of 2011 Date Delivered: 10 Jun 2015

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: David Cullen v Medical Superitendent Kitale District Hospital & Attorney General

Citation: David Cullen V Medical Superitendent Kitale District Hospital & Another [2015] eKLR

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Charles Wepukhulu V Bungoma Teachers Savings & Credit Society [2015] eKLR

Case Number: Civil Suit 113 of 2011 Date Delivered: 10 Jun 2015

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Charles Wepukhulu v Bungoma Teachers Savings & Credit Society

Citation: Charles Wepukhulu V Bungoma Teachers Savings & Credit Society [2015] eKLR

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Bungoma Teachers Sacco Ltd V Athanus Wafula Wamunyinyi [2015] eKLR

Case Number: Land & Environment Case 176 of 2014 Date Delivered: 10 Jun 2015

Judge: Samwel Ndungu Mukunya

Court: Environment and Land Court at Bungoma

Parties: Bungoma Teachers Sacco Ltd v Athanus Wafula Wamunyinyi

Citation: Bungoma Teachers Sacco Ltd V Athanus Wafula Wamunyinyi [2015] eKLR

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Republic V Raphael Muoki Kalungu [2015] eKLR

Case Number: Criminal Case 77 of 2014 Date Delivered: 10 Jun 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Raphael Muoki Kalungu

Citation: Republic V Raphael Muoki Kalungu [2015] eKLR

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William Mogeni Momanyi V Aga Khan University Hospital [2015] eKLR

Case Number: Cause 1766 of 2013 Date Delivered: 10 Jun 2015

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: William Mogeni Momanyi v Aga Khan University Hospital

Citation: William Mogeni Momanyi V Aga Khan University Hospital [2015] eKLR

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In Re S.N.K [2015] eKLR

Case Number: Miscellaneous Application 12 of 2014 Date Delivered: 10 Jun 2015

Judge: Aggrey Otsyula Muchelule

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re S.N.K

Citation: In Re S.N.K [2015] eKLR

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Wilfred Muna Virah V Mumbe Muna [2015] eKLR

Case Number: Civil Appeal 17 of 2014 Date Delivered: 10 Jun 2015

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Wilfred Muna Virah v Mumbe Muna

Citation: Wilfred Muna Virah V Mumbe Muna [2015] eKLR

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John Muhatia V Joash Shivukale [2015] eKLR

Case Number: Civil 2 of 2009 Date Delivered: 09 Jun 2015

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: John Muhatia v Joash Shivukale

Citation: John Muhatia V Joash Shivukale [2015] eKLR

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Republic V Registrar Of Societies Ex-Parte John Makokha & 4 Others [2015] eKLR

Case Number: Misc. Criminal Appeal 14 of 2015 Date Delivered: 09 Jun 2015

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Republic v Registrar Of Societies Ex-Parte John Makokha, Joel Wekesa, James Simiyu Wabukha, Graham Kisiang’ani & Japheth Mukoya

Citation: Republic V Registrar Of Societies Ex-Parte John Makokha & 4 Others [2015] eKLR

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Kenya National Highways Authority V Masosa Construction Limited & Another [2015] eKLR

Case Number: Miscellaneous Suit 565 of 2014 Date Delivered: 09 Jun 2015

Judge: Fred Andago Ochieng

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Kenya National Highways Authority v Masosa Construction Limited & QS Newton Dishon Maungu (Sole Arbitrator)

Citation: Kenya National Highways Authority V Masosa Construction Limited & Another [2015] eKLR

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Bernard Gichobi Njira V Kanini Njira Kathendu & Another [2015] eKLR

Case Number: Miscellaneous (Reference) Application 4 of 2015 Date Delivered: 09 Jun 2015

Judge: Robert Kipkoech Limo

Court: High Court at Kerugoya

Parties: Bernard Gichobi Njira v Kanini Njira Kathendu & another

Citation: Bernard Gichobi Njira V Kanini Njira Kathendu & Another [2015] eKLR

The Scope of assessment of Bills of Costs at the Magistrates’s courts.

Bernard Gichobi Njira v Kanini Njira Kathendu and Another

Miscellaneous (reference) Application no. 4 of 2015

High Court at Kerugoya

   H J R Limo, J

June 9, 2015

Reported by Teddy Musiga & Daniel Hadoto

 

Brief facts

 

This application was made in regard to the decision of court to overrule the Applicant’s Preliminary Objection.  The Applicant had raised a preliminary objection in the subordinate court in Wanguru on the basis that a resident magistrate lacked jurisdiction to tax the Respondents Bill of Costs presented before that court by the Respondents who had been awarded costs by the same court. Premise of the argument was that the Respondents ought to have applied to have their costs assessed rather than filing a formal Bill of Costs in a magistrate’s court.

  The Applicant asked this Court to set aside the learned trial magistrate’s decision dismissing the Applicant’s Preliminary Objection and further proceed to strike out the Respondents’ Bill of Costs arguing that formal bill of costs are only filed in matters that are before this Court and are taxed by Deputy Registrars or taxing officer as provided under paragraph 10 of the Advocates Remuneration Order.

The applicant contended that the only way he could challenge the trial court’s decision was through this reference.

 

Issues-

  1. Whether magistrates or subordinate courts have jurisdiction to determine costs payable in cases before the said courts and if so whether determination of those costs can be properly referred to as “assessment of costs” or “taxation of bill of costs.”
  2. What is the distinction between “assessment of costs” or “taxation of bill of costs?”
  3. Whether the Applicant is correct to file for a reference rather than an appeal against the decision of the learned trial magistrate on a preliminary objection filed.

 

Civil Practice & Procedure  – taxation of bill of costs – jurisdiction of magistrate/ subordinate courts  in taxation of bill of costs – distinction between taxation and assessment of costs – Civil Procedure Act, section 27); Advocates Remuneration Order, schedule VI &VII; Paragraph 11 & 49

Words & Phrases

The Black’s Law Dictionary defined “taxation of Costs” as “the process of fixing the amount of litigation-related expenses that a prevailing party is entitled to be awarded.” On the other hand the same dictionary defined “assessment of costs” as the determination of the rate or amount of something (costs in this instance) – imposition of something (costs) e.g. fines…….”

 

The Oxford English Dictionary defined “taxation of costs” as examining and assessing the costs of a case. It also defined “assessment” as evaluating or estimating the nature, value or quality…….to set the value of a tax, fine etc for a person at a specified level.”  

 

 Held

 

  1. Subordinate courts in Kenya had the jurisdiction to determine costs payable in cases filed before those courts. Taxation of costs and assessment of costs meant one and the same thing.  In the High Courts, determination of costs payable had always been commonly referred to as “taxation” while at the lower courts the determination of costs payable had been commonly referred to as “assessment”. Any of the terminologies could be used both by the High Court and the courts below without any problem.

 

  1. Section 27 of the Civil Procedure Act gave both the subordinate court and the High Court discretion and the jurisdiction to not only award costs but determine the extent at which those costs were to be paid and by which party.

 

  1.   Paragraph 49 of the Advocates Remuneration Order clearly defined a “court” to mean both the High Court or any judge thereof or a Resident Magistrate’s Court or a magistrate sitting in a magistrate’s court.  A court in Part III of the Advocates Remuneration Order was given the mandate to determine costs in contentious matters as between advocate and client and between party and party.  It was therefore clear and indisputable that a magistrate’s court had jurisdiction to assess costs and as a matter of law, paragraph 51 of the Advocates Remuneration Order clearly gave the applicable scale to be used in the subordinate courts as Schedule VII.

 

  1. The Applicant’s contention that an executive officer could assess or tax costs in his administrative capacity was not hinged on law and in that regard was a misconception.  An executive officer certainly could not be a taxing officer for purposes of Advocates Remuneration Order.

 

  1. The question of whether a bill of costs could be presented before a magistrate’s court sitting as such was moot but a look at Schedule VII as compared to Schedule VI suggested that it was desirable and practical to file a bill of costs in the High Court cases in view of the extensive and laborious nature of the bill to enable a successful litigant and the taxing officer to comprehensively deal with ease all the taxable items on costs awarded.

 

  1. In the subordinate court, the only discretion given was in relation to Schedule VII subsection 2 thereof and it related to instructions fees on suits by the nature of which no specific sum was sued for.  Otherwise the amounts in other taxable items were specified and for that reason it was desirable and practical for parties in whose favour costs were awarded to write to the subordinate court by way of letter asking the court to assess the costs as proposed or drawn.

 

  1.  The subordinate court has discretion either to assess costs ex- parte and notify the parties or invite the parties and tax the same inter- partes that is if the parties were not in agreement on a specific item which usually relate to instructions fees.

 

  1. There was nothing wrong for magistrates to proceed in either way and they were perfectly in order to proceed either way to tax or assess costs payable in a case before them.  The practice of inviting parties for assessment of costs; though not mandatory was desirable to give the other parties a chance to be heard in order to avoid unnecessary complaints or references for one reason or the other.

 

 

  1. A magistrate was allowed and/or mandated by law to assess or tax costs payable in a given case.  The words or terminology used whether “assess” or “tax” was immaterial.  The bottom line was to determine the total amount of costs payable.  The fact that a magistrate had taxed or used the terminology “taxation” to assess or determine costs payable was not fatal if the bill presented before the court was in compliance with the requirements of Schedule VII of the Advocates Remuneration Order.  To make a different would have been unconstitutional in view of Article 159 (2) (d) of the Constitution.

 

  1. The objection that the Applicant raised at the subordinate court was based on form rather than substance and the learned trial magistrate’s decision on the preliminary objection could not be faulted because it was hinged on the Constitution in so far as substantial justice is concerned.  The learned magistrate had not taxed the Bill of Costs and the Applicant herein did not demonstrate what prejudice if any he was likely to suffer if the subordinate court had proceeded to tax/assess the costs payable.

 

  1. The Applicant chose to proceed under paragraph 11 of the Advocates Remuneration Order which presupposed that taxation had taken place and the party against whom the costs were taxed had become dissatisfied with certain items taxed or all the items.  That paragraph only granted an aggrieved party in a case chance to ventilate his grievance(s) only on the itemized bill but the question of jurisdiction to entertain the taxation or assessment of costs was a different matter altogether.

 

  1. The decision by the learned trial magistrate that he had jurisdiction to determine the issue of costs dissatisfied the Applicant and being aggrieved, the court agreed with the Respondents that the available remedy was to appeal against the ruling.  The court was not persuaded by the decision of Ringera, J (as he then was) quoted by the Applicant. The decision was quoted out of context and was not relevant in the instant case.  The quoted decision related to an actual taxation that had been done by a taxing officer despite the opposition that the bill had been filed prematurely.  The distinction here was that the subordinate court in that reference had not taxed the costs courtesy of this reference.

 

  1.  The Applicant should have appealed against the decision of the learned trial magistrate because the operation of paragraph 11 of the Advocates Remuneration Order can be invoked after taxation or assessment of costs.

 

Application dismissed with costs.

Leave to appeal granted.

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