Suchan Investments Limited v Minstry for National Heritage & Culture, Sandeep Desai, Dipa Pulling & Kevit Desai & Niranjan Desai [2017] KEHC 9614 (KLR)

REPUBLIC OF KENYA

IN THE HIGH  COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

MISC. APPL.  129 OF 2009

SUCHAN INVESTMENTS LIMITED..........................................APPLICANT

V ERSUS

MINSTRY FOR NATIONAL HERITAGE & CULTURE....1ST RESPONDENT

SANDEEP DESAI............................................................2ND RESPONDENT

DIPA PULLING.................................................................3RD RESPONDENT

KEVIT DESAI & NIRANJAN DESAI................................4TH RESPONDENT

RULING

1. By a Chamber Summons dated 28th July, 2017, the 2nd Respondent/Applicant, Sandeep Desai, (hereinafter referred to as “the Applicant”) substantially seeks that the time fixed for the lodging of a reference against the ruling of the Taxing Master delivered on 21st December, 2016 be enlarged to allow for the prosecution and determination of the application and that the Taxing Master’s Ruling and Reasons for Taxation delivered on 21st December, 2016 in respect of the ex parte applicant’s Bill of Costs dated 10th May, 2016 be reviewed in respect of the sum allowed on instructions fees and consequently, on getting up fees. It was further prayed that the certificate of costs dated 6th February, 2017 be set aside.

2. In her ruling and reasons for taxation given on 21st December, 2016, the Taxing Officer, E. W. Mburu (Mrs) expressed herself as hereunder:

“I am persuaded that this was not an ordinary judicial review matter that is heard and soon concluded, it took quite some time to finalise, I shall allow Kshs 10,000,000/= under this head, Kshs 35,000,000/= is hereby taxed off.”

3. In her ruling the Taxing Officer appreciated that the applicant was seeking the sum of Kshs 36,000,000/= in respect of that item.

4. It is clear that if the sum of Kshs 35,000,000/- was taxed off from the claim of Kshs 36,000,000/= it would have left the sum of Kshs 1,000,000/= and not the Kshs 10,000,000/= which the Taxing Officer awarded under that head. It is therefore clear that the decision of the Taxing Officer on the face of it does not add up.

5. Article 165(6) of the Constitution provides as hereunder:

The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

6.  Barring the application before me this Court under Article 165(6) of the Constitution has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. In exercising its said jurisdiction the Court is empowered under Article 165(7) thereof to call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

7. The Court of Appeal in Kamlesh Mansuklal Damji Pattni & Another vs. R. Nairobi HCMA No. 322 of 1999 held that:

“Section 65 of the constitution confers on the High Court constitutional supervisory jurisdiction over subordinate courts and court martial akin to judicial review. Different rules of practice and procedures, not necessarily those contained in Order 53 Civil Procedure Rules, are envisaged though they have not been formulated and in the absence of such rules, an applicant can presumably approach the High Court by any procedure recognised by law including an Originating Motion…The potential of this supervisory jurisdiction of the High Court in criminal and civil proceedings in subordinate courts seems wider than the judicial review jurisdiction under Order 53 of the Civil Procedure Rules.”

8. The same position was adopted by Ibrahim, J (as he then was) in Republic vs. Chairman Nandi Land Disputes Tribunal, Kapsabet Division & Paul Fundi Tuwei Ex Parte Martha Jerogony Cheres Eldoret HCMCA No. 164 of 2005 where the learned Judge held that the Court exercises its original and inherent jurisdiction to supervise public bodies and quasi-judicial Tribunals and questions the jurisdiction of the Tribunal and will intervene where an inferior tribunal takes the law in its own hands and assumes jurisdiction it does not have.

9. In this case, it is clear that the decision of the Taxing Officer cannot be implemented in the manner in which it was delivered. Whereas it may well have been prudent to seek the clarification of the matter from the Taxing Officer, as Nyamu, J (as he then was) expressed himself in Republic vs. Kajiado Lands Disputes Tribunal & Others Ex Parte Joyce Wambui & Another Nairobi HCMA No. 689 of 2001  [2006] 1 EA 318, a Court of law ought not to countenance irregularities or decisions that are likely to occasion injustice to the parties.

10. I therefore find without dealing with the other matters raised that this is a fit and just matter for the Court to exercise its supervisory jurisdiction pursuant to Article 165(6) of the Constitution.

11.  Accordingly, the decision of the Taxing Officer made on 21st December, 2016 in respect of the instructions fees and the getting up fees is hereby set aside.

12. The matter is remitted back to the Taxing Officer to re-tax the said two items afresh.

13. It is so ordered.

Dated at Nairobi this 17th day of November, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Desai the applicant in person

Miss Nyabuto for the Respondent

CA Ooko