|Miscellaneous Case 303 of 2007
|SAMUEL MACHARIA KAGAI t/a BELL & HAMMER GENERAL MERCHANT v KENYA COMMECIAL BANK LTD
|16 Dec 2010
|High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
|Murugi Geteria Mugo
|SAMUEL MACHARIA KAGAI t/a BELL & HAMMER GENERAL MERCHANT v KENYA COMMECIAL BANK LTD  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CASE NO. 303 OF 2007
R U L I N G
The Application is premised on the ground that the judgment is necessary to facilitate the execution of a decree against the Respondent who has refused to pay the taxed costs despite demand being made by the applicants’ advocates under cover of a letter dated 24th March 2010, annexed to the supporting affidavit as annexture “SKM2”. The applicant has asked the court to take into consideration overriding principles in accordance with Section 1A of the Civil Procedure Act in order to expedite the matter. Counsel argued that the court has a very wide discretion in this regard.
I agree with counsel for the applicant that the court has a very wide discretion to make orders as are necessary to resolve disputes in the interests of justice. I must state, however, that equity always follows the law. The law, as I understand it is that, in civil matters, judgment and decree are provided for under Section 25 of the Civil Procedure Act which provides as follows:
(i) where the Plaint is drawn claiming a liquidated demand, and either -
(b) the Defendant, having entered such appearance, has failed to file a defence within the time prescribed; or
Section 81(2) makes provisions for Summary Procedure, inter alia, in suits in which the Plaintiff seeks only to recover a debt or liquidated demand in money payable by the Defendant,, with or without interest, arising out of a contract express or implied; or on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;....
The court is also aware of the Ruling of the Honourable Lady Justice Koome of 18th January 2010, made in an application quite similar to the one before this court. i.e. Misc. Application No. 1665 of 2007 MARGARET ANINDO T/A IGARE AUCTIONEERS vs. HARAMBEE SACCO SOCIETY, ALI NASHIR KURJI & RIAZ KURJI all T/A ELITE COMPUTERS. Whilst I understand the learned judges position in the matter I nonetheless and with profound respect depart from the findings therein since the decision is not binding upon me.
“The formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of parties with regards to all or any of the matters in controversy in the suit and may either be preliminary or final; it includes the striking out of a Plaint, a determination of any question within Section 34 of Section 91-------”
Under the Civil Procedure Act, “suit” means all civil proceedings commenced in any manner prescribed. As correctly put by counsel for the Respondent in his submissions, Order IV Rule 1 provides that “every suit shall be instituted by presenting a plaint to the court or in such other manner as may be prescribed”. The only prescribed alternative to the filing of a Plaint is the commencement of a suit by way of an Originating Summons under Order XXXVI which clearly spells out the circumstances, by whom and in respect of which reliefs Originating Summons can be taken out. A claimant such as the applicant herein is clearly excluded.
“ 1A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the Civil disputes governed by the Act.
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court”.
The issue of time and costs does not therefore arise in this case since costs will always follow the event. This means that any costs as would be incurred by the applicant in filing a substantive suit will be paid by the Respondent, who stands condemned to pay the Applicant’s costs as per the Certificate of Taxation. As the court cannot usurp the power of parliament to create new laws, persons such as the applicant before court ought to advocate for the formulation and enactment of new rules under the Auctioneers Act as happened in the case of advocates. The current Auctioneers Act provides for the Chief Justice to do so under----- Section 30 which provides as follows:
“The Chief Justice may make rules for the better carrying out of the provisions of this Act and in particular, such rules as may provide for –
(f) the forms to be used, the fees payable by and the Remuneration of Licensed Auctioneers
SIGNED and DELIVERED at NAIROBI this 16TH day of DECEMBER, 2010.
M. G. MUGO