Philip Kilu Menze & 42 others v Cons Matata t/a Cons Matata

& Co Advocates

High Court, at Nairobi July 30, 2001

Ringera J

Civil Case No 2070 of 2000 (O.S)

Civil Practice and Procedure – originating summons – form of an originating summons against an advocate for an account - proper format of the application – failure to adhere to prescribed format – consequences of such failure.

The plaintiffs, claiming to be clients of the defendant advocate, took out an originating summons in which they sought orders for a cash account amongst other prayers. The summons was expressed to be brought under order 36 rules 11 and 12, order 52 rule 4; section 3A of the Civil Procedure Act and section 56 of the Advocates Act.

The defendant took out a preliminary objection to the suit on three grounds, namely; that the summons did not comply with order 52 rule 4 (2) and order 36 rule 7 of the Civil Procedure Rules; that the Court had no jurisdiction to grant prayers that amounted to disciplinary action against an advocate and that the applicants had no locus standi to institute the subject matter of the proceedings since they were not clients of the defendant.

Held:

1. Section 51 (1) of the Advocates Act requires that every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivery up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.

2. Under order 36 of the Civil Procedure Rules, it is patent from form 13 of appendix B that an originating summons against an advocate should be expressed to be taken out in the matter of an advocate.

3. Lapses and omissions in respect of matters of form and procedure whether those procedures and forms be mandatory or not are not fatal unless they go to the jurisdiction of the Court or materially prejudice the adversary.

4. A preliminary objection is a point of law taken on the basis of agreed or uncontested averments or findings of fact which if successful would dispose of the entire suit in which the objection is taken.

Preliminary objection overruled, order that originating summons be amended.

Cases

No cases referred to

Statutes

1. Civil Procedure Act (cap 21) section 3A

2. Advocates Act (cap 16) section 51(1); 56

3. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rules 7, 11, 12; order LII rule 4(2)

4. Interpretation and General Provisions Act (cap 2) section 72

Advocates

Mr Gautama for the Plaintiffs

Mr Wandago for the Defendant

Samwel D N Okello v Republic

High Court, at Nairobi July 27, 2001

Etyang J

Criminal Application No 426 of 2001

Constitutional Law – High Court - supervisory powers of the High Court – absence of rules of practice and procedure regarding the exercise of this power – whether this deficiency denied court jurisdiction – Constitution sections 65(2), (3).

Criminal Practice and Procedure – mentions – mentions of criminal cases – whether mentions amount to “proceedings”.

The applicant filed a Notice of Motion seeking the High Court’s exercise of its supervisory powers under section 65(2) of the Constitution, and its revisionary powers under sections 362 and 364 (1) (b) of the Criminal Procedure Code (cap 75). The applicant and the interested parties had been charged before the Chief Magistrate, Nairobi in Criminal Case No 399 of 2000. The charges were preferred against them by the Kenya Anticorruption Authority (KACA). A constitutional court in High Court Miscellaneous Application No 302 of 2000 declared the investigative and prosecutorial powers of KACA unconstitutional and therefore null and void. The Attorney General then intimated his desire to take over the prosecution of the applicant, in exercise of his powers under section 26(3) of the Constitution. The applicant filed HC Misc Civil Application No 244 of 2001 seeking leave to apply for an order of certiorari to quash the criminal charges in Chief Magistrate’s Case No 399 of 2000. The applicant also sought an order that such leave do operate as a stay of further proceedings until the hearing of the judicial review application. The orders for leave and stay were granted. When these orders were brought to the attention of the trial magistrate, the magistrate adjourned but ordered that the said criminal case shall continue to be mentioned on dates agreed upon until the determination of the judicial review application. The applicant was aggrieved by the decision of the trial magistrate terming it as improper, irregular, illegal and invalid for lack of jurisdiction or power to alter, vary or modify a High Court order.

Held:

1. The Constitution of Kenya has, vide section 65(2) thereof, bestowed upon the High Court Jurisdiction to supervise any civil or criminal proceedings before a subordinate court or a court martial, and to make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.

2. The fact that no rules of practice and procedure may have been made under section 65 (3) of the Constitution does not remove the High Court’s supervising jurisdiction under section 65 (2) of the Constitution. Besides, rules of practice and procedure are only administrative in nature dealing with regulatory and machinery processes. The values and principles embodied in the Constitution remain.

3. After the record of the subordinate court has been called for pursuant to the provisions of section 362 of the Criminal Procedure Code, the High Court has jurisdiction and power to alter or reverse any order or finding of the subordinate court which may come into question.

4. The holding of mentions is a form and manner of conducting judicial business. It is not an administrative exercise. This is why mentions are conducted by judicial officers and that whatever transpires during mentions forms part of court proceedings. The trial magistrate had no authority to fix the mentions in the criminal case.

Application allowed in part.

Cases

1. Njogu v Attorney General High Court Criminal Application No 39 of 2000

2. Njuki, David Manyara v Chief Magistrate’s Court Nakuru High Court Miscellaneous Application No 195 of 1999

Texts

Black, HC (Ed) (1979) Black’s Law Dictionary St Paul Minnesota: West

Publishing Co 5th Edn p 1083

Statutes

1. Constitution of Kenya sections 26(3)(b); 65(2),(3)

2. Criminal Procedure Code (cap 75) sections 205(1); 362; 364(1)(b)

3. Penal Code (cap 63) sections 101(1), 317, 349

Advocates

Mr Tobiko for the Applicant

Mr Njeru for the Interested Parties

Mr Bwonwongwa for the State/Respondent