L.W. Wang’ombe & Co. Advocates v Kenya Orient Insurance Limited [2022] KEHC 16565 (KLR)

L.W. Wang’ombe & Co. Advocates v Kenya Orient Insurance Limited (Miscellaneous Case 402 of 2019) [2022] KEHC 16565 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16565 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Case 402 of 2019

MW Muigai, J

December 15, 2022

Between

L.W. Wang’ombe & Co. Advocates

Applicant

and

Kenya Orient Insurance Limited

Respondent

Ruling

1. This matter before court is pursuant to the ruling by the Deputy Registrar of June 2, 2022 while dealing with preliminary objection raised against the bill of costs dated September 24, 2019.

2. It would be noteworthy to give a brief factual background of this matter. The applicant filed an advocate-client bill of costs dated September 24, 2019. The respondent filed a notice of preliminary objection dated February 5, 2022 contesting the jurisdiction of the court mainly on the account that there was no advocate-client relationship. The parties filed their respective submissions and the hon Deputy Registrar delivered ruling to the effect that the taxing officers lacks jurisdiction to determine the matter and thus upholding the preliminary objection. The taxing master further directed that the matter be placed before this court for directions.

Determination 3. In the locus classicus case on jurisdiction; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] the court pronounced;“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

4. I have keenly perused through the file and I find that none of the parties has invoked the jurisdiction of this court. Essentially, nothing has been placed before the court seeking the intervention of this court. It would be in vain to issue direction in a matter that is not properly before the court.

5. In the case of Daniel Kimani v Francis Mwangi Kimani & Another, Civil Application 3 of 2014 [2015] eKLR where the Supreme Court held that a litigant must invoke the correct constitutional or statutory provision on the basis of which he seeks to invoke the court’s jurisdiction. It stated as follows;“However, the extraordinary standing of this court would demand that, in principle, litigants be clear as to the terms of the jurisdiction they are invoking. The litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under article 159 of the Constitution. The guiding principle emerges from this court’s single-judge bench observation in Yusuf Gitau Abdalla v The Building Centre (K) Ltd & 4 Others, Petition 23 of 2014, as follows:Even as the court seeks to do justice, it cannot be lost to it that despite having a conscience, it is a court of law and not of mercy. It is also bound by the law and more so the Constitution which binds all…”

6. This court has jurisdiction to hear and determine a matter filed as a reference from the Taxing Officer’s taxing of bill of costs. The reference ought to be filed within 30 days of delivery of the ruling of the Taxing Officer or leave is sought to have the matter filed out of statutory period.

7. In this court it is not clear whether the preliminary objection on this court’s jurisdiction is also invoked and ought to be determined first, and if so is it a reference or a substantive application?

8. Consequently, parties/counsel shall move this court appropriately to canvas/ventilate the substantive matter before it.

It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS 15THDAY OF DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE)M. W. MUIGAIJUDGEIN THE PRESENCE OF:Mordecai - for the ApplicantNo appearance - for the RespondentGeoffrey/Patrick - Court Assistant(s)