Republic v Ex-Parte John Francis Muyodi & Peter Lunani Ogomo [2014] KEHC 1673 (KLR)

REPUBLIC  OF KENYA.

IN THE HIGH COURT OF KENYA.

HIGH  MISC. APP. NO. 208 OF 2013.

REPUBLIC …………………..………………………………..APPLICANT

=VERSUS=

PETER LUNANI OGOMO…………………………..INTERESTED PARTY

JOHN FRANCIS  MUYODI………………………EXPARTE APPELLANT.

R U L I N G.

JOHN FRANCIS  MUYODI,  the  exparte  applicant, through  the chamber summons under certificate of urgency dated 28th Novmber, 2013 prays  for the following;

‘’  1.    This  application is  certified as urgent and is heard on priority basis.

2.    The Exparte  Applicant  is hereby granted  leave to apply for an order of Mandamus  to direct  the Deputy Registrar High Court Busia  to give her written reasons in her decision given on the  30th August, 2013  in taxation of the 1st defendants  bill of costs                      dated 8th July, 2013 as required  by Rule 11 (2)  of the Advocates  Remuneration order to enable him to contest that  decision before the Judge.

3.    The Exparte Applicant  is hereby granted leave to apply for an order of certiorari to call into the High Court the Notice  to show cause why the Exparte Applicant should not be arrested and   committed to prison, dated 17th October, 2013 for the  purpose  of their being quashed.

4.    The Exparte Applicant is hereby granted leave to apply for an order of prohibition to prohibit the learned Deputy Registrar High Court, Busia  or any Court or person of subordinate court to entertain any proceedings in relation to or the decision made  by the said Deputy Registrar on 30/8/2013 in the said  taxation  in Busia HCCC. NO. 42 of 2010.

5.    The grant  of leave to apply for orders herein above mentioned is hereby directed to apply as a stay of all proceedings that may be taken by any party before the Deputy Registrar High court in HCCC. No. 42 of 2010.

6.    The cost of this Application be costs in substantial Application.’’

The application is based on the four grounds marked (a)  to (d). The  application was filed together with the supporting affidavit to which is annexed  five  documents  marked ‘’JFM 1 – 5’’ Statement  of facts and the Affidavit  verifying  statement of facts.

When  the application was placed  before me on 2nd December, 2013, directions were given to the effect  that there  was no urgency in the application and that a hearing date was to be taken at the registry. A hearing  date of 6th March, 2014  was fixed  the same day.  On the 6th March, 2014, the Exparte Applicant was not in court but had forwarded a letter dated 5th March, 2014 indicating he was in Civil jail in respect of HCCC. No. 42 of 2010.  The  Respondent’s  counsel  was then in court and the matter was stood over generally. Then on 3rd June, 2014  the Exparte Applicant fixed  the application for hearing on 8th July, 2014 when it was rescheduled to 14th October, 2014 for reasons that  there was no evidence  of service  of hearing notice  on the Interested party, Peter Lunani Ongoma’s  counsel, M/S Magare & co, Advocates, who had come on record on 29th January, 2014.

The Interested Party had also filed a replying affidavit sworn by Francis Omondi, an advocate, on 30th January, 2014. The exparte Applicant had on 3rd March, 2014 filed written submissions.

When  the matter came up for interpartes hearing on 14th October, 2014, Mr. Omondi,  for Magare advocate,  and the Exparte Applicant made  their submissions.

I have  carefully considered the grounds on the application, contents of the statement of facts, Affidavit  verifying facts, supporting affidavit, replying  affidavit, the written  and verbal submissions and concluded as follows;

That judicial review  is one of the  reliefs this court can issue in proceedings under Article 23 (3) (f)  of the Constitution  in exercise  of its jurisdiction  under Article165 of the Constitution. The  procedure  for commencing judicial review  proceedings is guided by Order 53 of the Civil Procedure  Rules.

That under Order 53 Rule  2 of the Civil Procedure  Rules as read with section 9 (3) of the Law Reform Act, an application for leave to file an application for  judicial review  should be filed within  six months  from the date of the proceedings  or order to be challenged.  The Exparte  Applicant has complied  with this requirement  as all the orders he  seeks to challenge were issued after the taxation of the bill of costs dated 8th July, 2013  and his application was filed in court on 28th November, 2013.

That  though  the Interested Party  has claimed  that the Deputy Registrar  was not obliged to give reasons  for the items Exparte  Applicant  had sought for under the notice dated  2nd September, 2013  on the grounds that the Exparte  Applicant had participated in the taxation and further that  the  taxation  was by consent, there  is nothing  availed before this court to confirm that position.  The provision of section 11 (1) of the Advocates (Remuneration)  Order allows a party not satisfied with the decision of the taxing officer to give notice  in writing on the items objected to within 14 days. The taxing officer is then obligated under subsection (2)  to record and forward to the objector the reasons for his decision on the listed items. The  objector  is thereafter allowed to apply to a judge setting out the grounds of objection.

That Exparte Applicant’s notice  dated 2nd  September, 2013 indicates the taxation  was done on 30th August, 2013. The notice  was therefore issued  within the 14 days window provided under section 11 of the Advocates (Remuneration) order. There  is however nothing to show that the Deputy Registrar, as the taxing  officer, provided  the reasons on the items listed as required under section 11 (2)  of the Advocates (Remuneration) order  and prayer 2 is therefore  reasonable and should be granted.

That in respect to prayers 3 and 4, the court finds the issues therein can better be  dealt with through other processes provided for under the law rather than judicial review.  There is no justification for prayer (5) in view of the finding above.

That for reasons set out above, the application dated 28th  November, 2013 is allowed only in terms of prayer 2 with  costs in the cause.  The application to be filed and served in 21 days.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 13TH DAY OF NOVEMBER, 2014.

IN THE PRESENCE OF; MR. OMONDI FOR INTERESTED  PARTY ONLY.

JUDGE.