1. Vide a notice of motion dated 11/4/2024 supported by the affidavit of Wairimu Munyinyi Wahome sworn on even date, the Respondent craved for the following orders:
i. Spent
ii. This Honourable court to stay the execution of the ruling dated 2/10/2023 by the Applicant.
iii. This Hounourable court be pleased to review and/or set aside the ruling delivered on 2/10/2023 by Hon. Gloria Barasah.
iv. This Honourable court be plead to issue any other orders it deems fit.
v. Costs of the application be provided for.
2. The Advocate/Applicant filed a replying affidavit sworn by James Aggrey Mwamu on 3/6/2024 and simultaneously with a notice of preliminary objection couched as follows:
“Take NOTICE that the Applicant/Respondent herein shall raise preliminary objection on points of law that this court does not have jurisdiction to adjudicate over this matter, since the said application is not a reference as contemplated in the Advocates Act and the Advocates Remuneration Order. Reference is made to Section 19 of the Civil Procedure Act CAP 21 Laws of Kenya and Rule 11 of the Advocates Remuneration Order 2014.”
3. Directions were taken for the canvassing of the Applicants’ preliminary objection by way of written submissions. Both parties duly filled their respective submissions which this court has duly considered.
ANALYSIS AND DETERMINATION
4. It is instructive to note from the onset that the Respondent/Client opted to file submissions on its application and ignored the directions of this court made on 4/6/2024.
5. The issue that emerge for determination is whether this court has jurisdiction to entertain the notice of motion dated 11/4/2024.
6. The Applicant has submitted that the Respondent’s application is both statutory and procedurally defective and that its preliminary objection should be upheld.
7. In the locus classica of preliminary objections. Mukisa Biscuits Manufactures Ltd –vs- West End Distributors (1969) E.A 696 the court defined a preliminary objection as hereunder:
“……………. a ………….
8. The preliminary objection raised assaults the jurisdiction of this court to entertain the application herein. Jurisdiction is conferred upon court by the constitute or statute.
In the case of Owners of Motor Vessel Lilian S. –vs- Caltex Oil Kenya Ltd (1989) eKLR the court held that jurisdiction is everything and where a court makes a finding that it is not possessed of the requisite jurisdiction it must discontinue the procedures and donor its tools.
9. Paragraph 11 of the Advocates Remuneration order provides that:
“Where a party is aggrieved by the decision of a taxing officer, he is required to object in writing by requesting the taxing officer to give reasons for the items of taxation that he is objecting to and thereafter file reference to this court.”
10. The Respondent herein is aggrieved by the ruling and by the taxing master on 2/10/2023 yet it not write to her pursuant to the provisions of paragraph 11 of the Advocate Remuneration Order nor did it file any reference, nut instead opted to move this court under the provision of the Civil Procedure Rules.
11. In the case of Hezekiel Oira T/A H. Oira Advocate –vs- Kenya Broadcasting Corporation (2015) eKLR Justice Aburili rendered herself on a similar case thus:
“In my view, the Applicant cannot invoke the Civil Procedure Act and the Rules made thereunder to the procedure provided under the Advocates Act….”
12. The court in the above case was categorical that the jurisdiction of the Deputy registration under the Civil Procedure Rules and the Advocates Remuneration Order are separate and distinct. Further that the two jurisdiction and their separate procedures are mutually exclusive. Wherefore one procedure cannot be justified for the other. The court thus ruled that:
“….The procedure adopted by the Co. Advocate/Applicant in this matter was therefore I may view an abuse of the court process and procedures where the Deputy Registrar is exercising the special jurisdiction as a taxing Officer, a decision whether made on the actual items of the itemized bills or striking out of….”
13. The court of Appeal in the case of Machira and Company Advocates –vs- Arthur K. Maguga (2012) eKLR stated as follows:
14. Justice Havelock has occasion to deal with a similar issue in the High Court Miscellaneous 658/2012 and he held that there is appeal from a decision of a taxing master except as provided for under Rule 11 of the Advocates Remuneration Order.
15. It has been submitted by the Respondent that any lapses procedure are curable under Article 159 (2) of the Constitution of Kenya 2010. I beg to disagree as already state hereinabove, the Advocates Remuneration Order outlines the procedure of seeking redress for any grievance against a decision of a taxing master. The court of Appeal delt with a similar issue in the case of Kimani Wanyoike –vs- Electoral Commission of Kenya Criminal Appeal 213/95 (unreported) and held that:
“Whether there is a law prescribed by either a Constitution or an Act of Parliament governing a procedure for the redress of any particular grievance that procedure should be strictly followed.”
16. The above decision was followed by the court of Appeal in the case of the Speaker of National Assembly -vs- Karume (2008) KLR 425. The departure by the Respondent from following the statutory laid down under Rule 11 of the Advocates Remuneration Order cannot therefore be cured by the provisions of Article 159 (2) (d) of the Constitution of Kenya 2010. In the case of Stanley Kang’ethe Kinyanjui –vs- Tony Keter & 5 others (2015) eKLR the Court of Appeal rendered itself on departure from set procedural requirements as hereunder:
“While fully cognizant of time…..”
On the balance I find merit in the preliminary objection which I hereby upheld and I thus strike out the notice of notice dated 11/4/2024 for being statutory and procedurally effective. I award costs to the Applicant/Advocate assessed at Ksh. 30,000 payable within 45 days.
This file is marked as closed.
Dated at Kisumu this 24th day of December 2024