1. By a Motion on Notice dated 4/2/2026, the applicant sought the following orders: -
“1) That for purposes of the hearing and determination of the present Reference Application, this Honourable Court be pleased to call for and have placed before it the complete court files in:
a) Kisumu High Court Miscellaneous Civil Application No. 29 of 2020, James Aggrey Mwamu t/a Mwamu & Company Advocates v Ndung'u Gathinji;
a. Kisumu High Court Miscellaneous Reference Application No. 59 of 2023, Ndung'u Gathinji v James Aggrey Mwamu t/a Mwamu & Company Advocates; and
b. Kisumu High Court Miscellaneous Reference Application No. E018 of 2024, Ndung'u Gathinji v James Aggrey Mwamu t/a Mwamu & Company Advocates.
2) That the said files be deemed part of the record in the present Reference Application.”
2. The application was supported by the affidavit of Ndung'u Gathinji sworn on 4/2/2026. The grounds for the application were that; that the pleadings, proceedings, rulings and orders contained in the aforesaid files are directly relevant to the issues arising in the present reference. That without those records, the Court may not fully appreciate the factual and procedural background giving rise to the impugned taxation proceedings and the present reference.
3. That the orders sought were necessary to facilitate the just, expeditious and proportionate determination of the dispute in accordance with sections 1A, 1B and 3A of the Civil Procedure Act as read together with Article 159 of the Constitution. It was contended that the respondent will suffer no prejudice if the files were called for whereas failure to do so may occasion prejudice to the applicant and result in an incomplete determination of the issues before Court.
4. The application was opposed through the Replying Affidavit of James Aggrey Mwamu sworn on 26/2/2026 and the Grounds of Opposition of even date. The respondent contended that the application was incompetent, misconceived and an abuse of the court process. That the present proceedings do not constitute a competent reference under Paragraph 11 of the Advocates (Remuneration) Order and that the applicant was improperly seeking to challenge the ruling of the Deputy Registrar delivered on 9/7/2025 through a fresh miscellaneous application instead of a proper reference.
5. It was further contended that the questions of limitation and jurisdiction had already been determined in Kisumu High Court Miscellaneous Civil Application No. 29 of 2020, Miscellaneous Reference No. 59 of 2023 and Miscellaneous Reference No. E018 of 2024. That the application was an attempt to re-litigate matters already determined. According to the respondent, calling for the files would serve no legitimate purpose and will merely delay taxation of the Bill of Costs which has been pending since 2020.
6. The parties canvassed the application by way of written submissions which I have carefully considered. The applicant submitted that the application was merited and that the orders sought were necessary to enable the Court to effectively and fairly determine the pending reference.
7. Counsel argued that the proceedings in the referred to files formed the procedural history of the present dispute and contained pleadings, proceedings, rulings and orders that were directly relevant to the issues arising in the reference. That calling for the said files would ensure that the Court has the complete record before it, thereby facilitating a just, fair and consistent determination of the matter. That no prejudice would be occasioned to the respondent if the orders sought were granted.
8. On his part, the respondent submitted that the application was incompetent, misconceived and an abuse of the court process. That the present proceedings do not constitute a competent reference under Paragraph 11 of the Advocates (Remuneration) Order and that the applicant was improperly seeking to challenge the Deputy Registrar's ruling through a fresh miscellaneous application instead of a reference filed in the parent proceedings.
9. It was further submitted that the issues of limitation and jurisdiction had already been conclusively determined in the previous proceedings and that the present application was an attempt to re-litigate matters that had already been settled. That the orders sought were unnecessary as all relevant pleadings and rulings were already available in the parent file, and that calling for the previous files would serve no legitimate purpose other than delaying the taxation of the Respondent's Bill of Costs.
10. The issues falling for determination are whether this Court has jurisdiction to call for the records sought and whether the applicant has established sufficient grounds for the orders sought.
11. On jurisdiction to call for the sought records, this Court has inherent powers preserved under section 3A of the Civil Procedure Act as well as the overriding objective embodied in sections 1A and 1B of the Act. Those provisions oblige the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Equally, Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities while safeguarding the right to a fair hearing.
12. The applicant seeks the calling of the subject files and have the same be deemed to be part of the record in the present reference. On his part, the respondent opposes the application on the basis that the matters sought to be called for have already been heard and determined and that the application is an attempt to re-open issues previously determined by competent courts.
13. Sections 1A and 1B of the Civil Procedure Act impose upon the Court the duty of facilitating the just, expeditious, proportionate and affordable resolution of civil disputes. Complementing those provisions is Section 3A of the Civil Procedure Act, which preserves the Court's inherent jurisdiction.
14. In Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR, the Court reiterated that every superior court possesses inherent jurisdiction to safeguard the integrity of its proceedings and to ensure that justice is administered fairly. The Court emphasized that the exercise of such jurisdiction is informed by the need to prevent abuse of the court process and to facilitate the fair determination of disputes.
15. In Equity Bank v West Link MBO Limited (Civil application No.78 of 2011), Musinga JA held that: -
“Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure the ends of justice are met. Inherent power is the authority possessed by a court implicitly without it being derived from the constitution or statute.”
16. The Court of Appeal has likewise affirmed the broad case-management powers donated by the overriding objective. In Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR, the Court held that sections 1A and 1B of the Civil Procedure Act empower courts to actively manage proceedings in a manner that facilitates substantive justice while ensuring the efficient disposal of cases.
17. Likewise, in Stephen Boro Gitiha v Family Finance Building Society & 3 Others [2009] eKLR, the Court of Appeal held that the overriding objective clothes courts with ample discretion to adopt procedures that advance the just determination of disputes, provided that no prejudice is occasioned to the parties.
18. Guided by the foregoing principles, I am satisfied that this Court possesses the jurisdiction to call for records of related proceedings previously conducted before this Court where such records are necessary for a fair and effectual determination of the matter before it. Such power flows from the Court's inherent jurisdiction and its power to regulate its own proceedings.
19. Calling for the records does not amount to sitting on appeal over or reviewing the decisions made therein. It is a procedural case-management direction intended to place before the Court the relevant material necessary for the determination of the dispute before it. Whether the contents of those files ultimately support or undermine a party's case is a matter to be determined upon consideration of the substantive issues in the pending proceedings.
20. Accordingly, I find that this Court has the requisite jurisdiction, under Article 165(3)(a) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and its inherent powers, to call for the records of the identified High Court proceedings where it is satisfied that such records are necessary for the just and effectual determination of the Reference before it.
21. On whether the applicant has established sufficient grounds to warrant this Court calling for the records sought, it is the applicant’s case that the three files sought contain pleadings, proceedings, rulings and orders which provide the procedural history culminating in the impugned ruling forming the subject of the present reference.
22. In my view, that explanation is neither unreasonable nor far-fetched. Where a reference arises from a chain of proceedings conducted in related files, it will be perfectly in order for the Court to call for those records if they are necessary to place the dispute in its proper context and enable the Court to appreciate the issues in controversy. In any event, all an applicant can do is to seek leave to file a further affidavit and therein exhibit those documents. That would lead to delay and more costs against the spirit of Article 159 of the Constitution.
23. The respondent's principal objection is that the present reference is itself incompetent and that the applicant seeks to reopen issues relating to limitation and jurisdiction which have already been determined in those files. If that be the case, then the more the reason why those files should be before this Court so that this Court should not relitigate a matter that has already been determined.
24. The orders sought do not reopen, review or set aside any decision made in the earlier proceedings. Neither do they amount to consolidation of the previous matters with the present reference. Calling for a court file is an administrative and procedural step intended to place before a Court all relevant material necessary for the proper adjudication of the dispute before it. Whether the previous decisions ultimately support or undermine a party’s case is a matter to be determined during the hearing of the reference itself.
25. I am equally not persuaded that any prejudice will be occasioned to the respondent by the grant of the orders sought. The respondent has been a party to all the proceedings whose records are sought. No substantive rights are affected merely by making those records available to the Court. On the other hand, declining the application may impede the Court's ability to appreciate the full procedural history of the dispute should it emerge that those records bear directly on the issues arising in the reference.
26. The Court's duty is to determine disputes on the basis of a complete and accurate record. Where previous proceedings are closely connected with the issues before the Court, the overriding objective and the interests of justice favour availing those records rather than determining the matter on an incomplete record.
27. Accordingly, I find merit in the Notice of Motion dated 4th February 2026. Consequently, I make the following orders: -
a) The Deputy Registrar shall forthwith place before this Court the records in:
i) Kisumu High Court Miscellaneous Civil Application No. 29 of 2020;
ii) Kisumu High Court Miscellaneous Reference Application No. 59 of 2023; and
iii) Kisumu High Court Miscellaneous Reference Application No. E018 of 2024.
b) Upon receipt, the said files shall be deemed to be part of the record for purposes only of hearing and determining the present Reference application.
c) The costs of the application shall abide the outcome of the Reference.
It is so ordered.
“1) That for purposes of the hearing and determination of the present Reference Application, this Honourable Court be pleased to call for and have placed before it the complete court files in:
a) Kisumu High Court Miscellaneous Civil Application No. 29 of 2020, James Aggrey Mwamu t/a Mwamu & Company Advocates v Ndung'u Gathinji;
a. Kisumu High Court Miscellaneous Reference Application No. 59 of 2023, Ndung'u Gathinji v James Aggrey Mwamu t/a Mwamu & Company Advocates; and
b. Kisumu High Court Miscellaneous Reference Application No. E018 of 2024, Ndung'u Gathinji v James Aggrey Mwamu t/a Mwamu & Company Advocates.
2) That the said files be deemed part of the record in the present Reference Application.”
2. The application was supported by the affidavit of Ndung'u Gathinji sworn on 4/2/2026. The grounds for the application were that; that the pleadings, proceedings, rulings and orders contained in the aforesaid files are directly relevant to the issues arising in the present reference. That without those records, the Court may not fully appreciate the factual and procedural background giving rise to the impugned taxation proceedings and the present reference.
3. That the orders sought were necessary to facilitate the just, expeditious and proportionate determination of the dispute in accordance with sections 1A, 1B and 3A of the Civil Procedure Act as read together with Article 159 of the Constitution. It was contended that the respondent will suffer no prejudice if the files were called for whereas failure to do so may occasion prejudice to the applicant and result in an incomplete determination of the issues before Court.
4. The application was opposed through the Replying Affidavit of James Aggrey Mwamu sworn on 26/2/2026 and the Grounds of Opposition of even date. The respondent contended that the application was incompetent, misconceived and an abuse of the court process. That the present proceedings do not constitute a competent reference under Paragraph 11 of the Advocates (Remuneration) Order and that the applicant was improperly seeking to challenge the ruling of the Deputy Registrar delivered on 9/7/2025 through a fresh miscellaneous application instead of a proper reference.
5. It was further contended that the questions of limitation and jurisdiction had already been determined in Kisumu High Court Miscellaneous Civil Application No. 29 of 2020, Miscellaneous Reference No. 59 of 2023 and Miscellaneous Reference No. E018 of 2024. That the application was an attempt to re-litigate matters already determined. According to the respondent, calling for the files would serve no legitimate purpose and will merely delay taxation of the Bill of Costs which has been pending since 2020.
6. The parties canvassed the application by way of written submissions which I have carefully considered. The applicant submitted that the application was merited and that the orders sought were necessary to enable the Court to effectively and fairly determine the pending reference.
7. Counsel argued that the proceedings in the referred to files formed the procedural history of the present dispute and contained pleadings, proceedings, rulings and orders that were directly relevant to the issues arising in the reference. That calling for the said files would ensure that the Court has the complete record before it, thereby facilitating a just, fair and consistent determination of the matter. That no prejudice would be occasioned to the respondent if the orders sought were granted.
8. On his part, the respondent submitted that the application was incompetent, misconceived and an abuse of the court process. That the present proceedings do not constitute a competent reference under Paragraph 11 of the Advocates (Remuneration) Order and that the applicant was improperly seeking to challenge the Deputy Registrar's ruling through a fresh miscellaneous application instead of a reference filed in the parent proceedings.
9. It was further submitted that the issues of limitation and jurisdiction had already been conclusively determined in the previous proceedings and that the present application was an attempt to re-litigate matters that had already been settled. That the orders sought were unnecessary as all relevant pleadings and rulings were already available in the parent file, and that calling for the previous files would serve no legitimate purpose other than delaying the taxation of the Respondent's Bill of Costs.
10. The issues falling for determination are whether this Court has jurisdiction to call for the records sought and whether the applicant has established sufficient grounds for the orders sought.
11. On jurisdiction to call for the sought records, this Court has inherent powers preserved under section 3A of the Civil Procedure Act as well as the overriding objective embodied in sections 1A and 1B of the Act. Those provisions oblige the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Equally, Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities while safeguarding the right to a fair hearing.
12. The applicant seeks the calling of the subject files and have the same be deemed to be part of the record in the present reference. On his part, the respondent opposes the application on the basis that the matters sought to be called for have already been heard and determined and that the application is an attempt to re-open issues previously determined by competent courts.
13. Sections 1A and 1B of the Civil Procedure Act impose upon the Court the duty of facilitating the just, expeditious, proportionate and affordable resolution of civil disputes. Complementing those provisions is Section 3A of the Civil Procedure Act, which preserves the Court's inherent jurisdiction.
14. In Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR, the Court reiterated that every superior court possesses inherent jurisdiction to safeguard the integrity of its proceedings and to ensure that justice is administered fairly. The Court emphasized that the exercise of such jurisdiction is informed by the need to prevent abuse of the court process and to facilitate the fair determination of disputes.
15. In Equity Bank v West Link MBO Limited (Civil application No.78 of 2011), Musinga JA held that: -
“Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure the ends of justice are met. Inherent power is the authority possessed by a court implicitly without it being derived from the constitution or statute.”
16. The Court of Appeal has likewise affirmed the broad case-management powers donated by the overriding objective. In Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR, the Court held that sections 1A and 1B of the Civil Procedure Act empower courts to actively manage proceedings in a manner that facilitates substantive justice while ensuring the efficient disposal of cases.
17. Likewise, in Stephen Boro Gitiha v Family Finance Building Society & 3 Others [2009] eKLR, the Court of Appeal held that the overriding objective clothes courts with ample discretion to adopt procedures that advance the just determination of disputes, provided that no prejudice is occasioned to the parties.
18. Guided by the foregoing principles, I am satisfied that this Court possesses the jurisdiction to call for records of related proceedings previously conducted before this Court where such records are necessary for a fair and effectual determination of the matter before it. Such power flows from the Court's inherent jurisdiction and its power to regulate its own proceedings.
19. Calling for the records does not amount to sitting on appeal over or reviewing the decisions made therein. It is a procedural case-management direction intended to place before the Court the relevant material necessary for the determination of the dispute before it. Whether the contents of those files ultimately support or undermine a party's case is a matter to be determined upon consideration of the substantive issues in the pending proceedings.
20. Accordingly, I find that this Court has the requisite jurisdiction, under Article 165(3)(a) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and its inherent powers, to call for the records of the identified High Court proceedings where it is satisfied that such records are necessary for the just and effectual determination of the Reference before it.
21. On whether the applicant has established sufficient grounds to warrant this Court calling for the records sought, it is the applicant’s case that the three files sought contain pleadings, proceedings, rulings and orders which provide the procedural history culminating in the impugned ruling forming the subject of the present reference.
22. In my view, that explanation is neither unreasonable nor far-fetched. Where a reference arises from a chain of proceedings conducted in related files, it will be perfectly in order for the Court to call for those records if they are necessary to place the dispute in its proper context and enable the Court to appreciate the issues in controversy. In any event, all an applicant can do is to seek leave to file a further affidavit and therein exhibit those documents. That would lead to delay and more costs against the spirit of Article 159 of the Constitution.
23. The respondent's principal objection is that the present reference is itself incompetent and that the applicant seeks to reopen issues relating to limitation and jurisdiction which have already been determined in those files. If that be the case, then the more the reason why those files should be before this Court so that this Court should not relitigate a matter that has already been determined.
24. The orders sought do not reopen, review or set aside any decision made in the earlier proceedings. Neither do they amount to consolidation of the previous matters with the present reference. Calling for a court file is an administrative and procedural step intended to place before a Court all relevant material necessary for the proper adjudication of the dispute before it. Whether the previous decisions ultimately support or undermine a party’s case is a matter to be determined during the hearing of the reference itself.
25. I am equally not persuaded that any prejudice will be occasioned to the respondent by the grant of the orders sought. The respondent has been a party to all the proceedings whose records are sought. No substantive rights are affected merely by making those records available to the Court. On the other hand, declining the application may impede the Court's ability to appreciate the full procedural history of the dispute should it emerge that those records bear directly on the issues arising in the reference.
26. The Court's duty is to determine disputes on the basis of a complete and accurate record. Where previous proceedings are closely connected with the issues before the Court, the overriding objective and the interests of justice favour availing those records rather than determining the matter on an incomplete record.
27. Accordingly, I find merit in the Notice of Motion dated 4th February 2026. Consequently, I make the following orders: -
a) The Deputy Registrar shall forthwith place before this Court the records in:
i) Kisumu High Court Miscellaneous Civil Application No. 29 of 2020;
ii) Kisumu High Court Miscellaneous Reference Application No. 59 of 2023; and
iii) Kisumu High Court Miscellaneous Reference Application No. E018 of 2024.
b) Upon receipt, the said files shall be deemed to be part of the record for purposes only of hearing and determining the present Reference application.
c) The costs of the application shall abide the outcome of the Reference.
It is so ordered.