1. The applicant moved the court vide an application chamber summons dated 20th June 2024 seeking orders that:
a) Pending the hearing and determination of this application this Honourable court be pleased to set aside the ruling issued on 20/6/2023
b) this Honourable court be pleased to set aside the taxation of the bill of costs pending the hearing and determination of Kisii civil case no 887 of 2021.
c) The court do pronounce itself on the applicability and legality of the retainer dated 30/9/2021 since the respondent/applicant has a right to know the same and subsequently why the advocate /respondent is violating it despite being his own document
d) the taxing officer lacks jurisdiction to hear and determine the issues of advocate client relationship and the ruling delivered on 20th June 2023 was ultra vires and therefore a nullity and an abuse of court process
e) the advocate/respondent cannot regulate his fee not outside the retainer dated 30/9/2021
f) the taxing officer or deputy registrar is not the court contemplated under section 2 CAP 16 of the Advocates Act and in the context of which lacked jurisdiction to hear and determine issues of retainer and ought to have referred retainer issues to the aforesaid court
g) The taxing officer or deputy registrar is not the court contemplated under section 2 CAP 16 of the Advocate’s Act and in the context of which lack jurisdiction to hear and determine issues of retainer and ought to have referred retainer issues to the aforesaid court
h) the cost of this application and that of the trial curt be entered in its place and be awarded to the respondents /applicant
2. The application is supported by the annexed affidavit of Kennedy Oduor.
3. The Respondent filed a replying affidavit of Oliver Onyango Owaka dated 14.12.24 in which he said that the application is seeks to set aside the ruling dated 20.6.24 but review has not been sought. Also that the applicant ought to have appealed instead of filing the instant application. He termed the application a waste this court’s time and aimed at stalling execution.
4. I have carefully considered the application , the response and the submissions .
The orders sought to be set aside were issued by Hon Justice J. Chigiti a Judge of the High court . This court also sits as a High Court . It is trite law the Jurisdiction is everything and the court must pen down where it finds that it lacks the same as was held in the locus classicus decision of Nyarangi, J.A. in The Owners of Motor Vessel Lilian “S” v. Caltex Oil Kenya Ltd. ]1989] KLR This court lacks jurisdiction to set aside orders issued by a court of concurrent jurisdiction . If the applicant wanted the said ruling to be reviewed he ought to have moved the court by way of a review or an appeal to the Court of appeal and not setting aside as he did . In any event the instant application is similar to the application dated 3.7.23 which was determined by Justice Chigiti on 20.6.24. Section 7 of the civil procedure Act provides as follows :“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
5. In the English case of Henderson v Henderson (1843-60) All E.R 378, the court observed thus:“…where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
6. The subject matter of the instant application and the application dated 3.7.23 are the same and the same was heard and determined by a court of competent jurisdiction. The application dated is thus Res judicata and this court lacks jurisdiction to determine it . I proceed to strike it out with costs to the respondent.
a) Pending the hearing and determination of this application this Honourable court be pleased to set aside the ruling issued on 20/6/2023
b) this Honourable court be pleased to set aside the taxation of the bill of costs pending the hearing and determination of Kisii civil case no 887 of 2021.
c) The court do pronounce itself on the applicability and legality of the retainer dated 30/9/2021 since the respondent/applicant has a right to know the same and subsequently why the advocate /respondent is violating it despite being his own document
d) the taxing officer lacks jurisdiction to hear and determine the issues of advocate client relationship and the ruling delivered on 20th June 2023 was ultra vires and therefore a nullity and an abuse of court process
e) the advocate/respondent cannot regulate his fee not outside the retainer dated 30/9/2021
f) the taxing officer or deputy registrar is not the court contemplated under section 2 CAP 16 of the Advocates Act and in the context of which lacked jurisdiction to hear and determine issues of retainer and ought to have referred retainer issues to the aforesaid court
g) The taxing officer or deputy registrar is not the court contemplated under section 2 CAP 16 of the Advocate’s Act and in the context of which lack jurisdiction to hear and determine issues of retainer and ought to have referred retainer issues to the aforesaid court
h) the cost of this application and that of the trial curt be entered in its place and be awarded to the respondents /applicant
2. The application is supported by the annexed affidavit of Kennedy Oduor.
3. The Respondent filed a replying affidavit of Oliver Onyango Owaka dated 14.12.24 in which he said that the application is seeks to set aside the ruling dated 20.6.24 but review has not been sought. Also that the applicant ought to have appealed instead of filing the instant application. He termed the application a waste this court’s time and aimed at stalling execution.
4. I have carefully considered the application , the response and the submissions .
The orders sought to be set aside were issued by Hon Justice J. Chigiti a Judge of the High court . This court also sits as a High Court . It is trite law the Jurisdiction is everything and the court must pen down where it finds that it lacks the same as was held in the locus classicus decision of Nyarangi, J.A. in The Owners of Motor Vessel Lilian “S” v. Caltex Oil Kenya Ltd. ]1989] KLR This court lacks jurisdiction to set aside orders issued by a court of concurrent jurisdiction . If the applicant wanted the said ruling to be reviewed he ought to have moved the court by way of a review or an appeal to the Court of appeal and not setting aside as he did . In any event the instant application is similar to the application dated 3.7.23 which was determined by Justice Chigiti on 20.6.24. Section 7 of the civil procedure Act provides as follows :“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
5. In the English case of Henderson v Henderson (1843-60) All E.R 378, the court observed thus:“…where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
6. The subject matter of the instant application and the application dated 3.7.23 are the same and the same was heard and determined by a court of competent jurisdiction. The application dated is thus Res judicata and this court lacks jurisdiction to determine it . I proceed to strike it out with costs to the respondent.