Case ID:169884

Sinohydro Corporation Limited v Samson Itonde Tumbo t/a Dominion Yards Auctioneers [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Cause E012 of 2020

Parties:

Sinohydro Corporation Limited v Samson Itonde Tumbo t/a Dominion Yards Auctioneers

Date Delivered:

28 Jan 2021

Case Class:

Civil

Court:

High Court at Kisumu

Case Action:

Ruling

Judge(s):

Fred Andago Ochieng

Citation:

Sinohydro Corporation Limited v Samson Itonde Tumbo t/a Dominion Yards Auctioneers [2021] eKLR

Court Division:

Civil

County:

Kisumu

Case Outcome:

Preliminary Objection dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL CAUSE NO. E012 OF 2020

SINOHYDRO CORPORATION LIMITED....................APPLICANT

VERSUS

SAMSON ITONDE TUMBO

t/a

DOMINION YARDS AUCTIONEERS.........................RESPONDENT

RULING

This Ruling is in respect to the Notice of Preliminary Objection dated 2

nd

November 2020.

1. It was the Respondent’s contention that the Application dated 21

st

October 2020 should be struck out because it offends the mandatory provisions of;

(i) Rule 55 (5) of the Auctioneers Rules;

(ii) Order 42 Rule 2 of the Civil Procedure

Rules;

(iii) Order 42 Rule 6 of the Civil Procedure

Rules;

(iv) Article 47 (1) of the Constitution; and

(v) Article 50 (1) of the Constitution.

2. It is clear from the face of the application in issue that the Applicant referred to it as a Reference.

3. In the circumstances, the Respondent submitted that if the Applicant was dissatisfied with the Ruling which the learned magistrate made on taxation, the only avenue available for challenging the Ruling was through an appeal, as opposed to a Reference.

4. Pursuant to the provisions of

Rule 55 (4)

of the

Auctioneers Rules

;

“An appeal from a decision of a registrar

or magistrate or the Board under sub-rule

(2) and (3) shall be to a Judge in chambers.”

5. The Applicant concedes that fact.

6. According to the Applicant, it has actually complied with the said provisions of the law.

7. Pursuant to

Rule 55 (5)

of the

Auctioneers Rules

;

“The memorandum of appeal, by way

of chamber summons setting out the

grounds of appeal, shall be filed within

7 days of the decision of the registrar

or magistrate.”

8. In the case of

OSCAR OTIENO ODONGO Trading As ODONGO INVESTMENT AUCTIONEERS Vs SUKARI INDUSTRIES LIMITED, MISC. CIVIL APPLICATION NO. 293 OF 2018

, (at Migori), the court dealt with issues emanating from the decision made by the learned Senior Resident Magistrate when he had been called upon to assess the Auctioneer’s costs.

9. The Auctioneer was dissatisfied with the decision of the learned magistrate, and it therefore filed a Chamber Summons under

Rule 55 (4)

of the

Auctioneers Rules

. However, the said Chamber Summons was not supported by an affidavit.

10. The Respondent, in that case, asked the court to strike out the Chamber Summons, as being incompetent, due to the absence of a supporting affidavit.

11. In his Ruling, Mrima J. held that pursuant to

Rule 55 (5)

of the

Auctioneers Rules

, the Chamber Summons is the equivalent of a Memorandum of Appeal under

Order 42 Rule 1

of the

Civil Procedure Rules

.

12. The learned Judge stated thus;

“That is the reason why an Affidavit

is not required to accompany the

Chamber Summons. Like the appeals

under Order 42 of the Civil Procedure

Rules, all what transpired before the

Court appealed from is to be introduced

to the Court appealed to by a Record of

Appeal.

I therefore do not see how the

Chamber Summons and the Record of

Appeal infringed any law.

In any event, the argument rests on

the form of the appeal and procedural

issues, which Article 159 (2) (d) of the

Constitution overrides, for substantive

justice.”

13. In the result Court overruled the objection in that case.

14. A careful look at the Ruling of Mrima J. will reveal the following statement;

“4. The Appellant, then aggrieved by

that decision preferred an appeal

by way of reference, which is the

subject of this judgment.”

15. It is to be noted that even in that case, which was cited by the Respondent herein, the learned Judge used the word

“Reference”

when talking about the Appeal.

16. I hold the considered view that by terming an Appeal as a Reference does not convert the said Appeal to a Reference.

17. In the case of

JOEL TITUS MUSYA T/A MAKURI ENTERPRISES Vs SOUTHERN CREDIT TRADING CORPORATION MISC CIVIL APPLICATION NO. 544 OF 2004

, Njagi J. held that;

“For the failure to file a memorandum

of Appeal in place of a reference, I find

that the applicant strayed, and renders

his application incompetent.”

18. By necessary implication, I understand L. Njagi J. to have been saying that a Reference cannot be transformed into an Appeal.

19. In that case, the Applicant had lodged a Reference under

Paragraph 11

of the

Advocates (Remuneration) Order

.

20. The court dismissed the Reference because it was deemed to be incompetent beyond redemption.

21. In the case of

EZEKIEL KIMINZA T/A AUTO LAND AUCTIONEERS Vs MISTRY VALJ. NARAN MULJI, ELC MISC. APPLICATION NO. 21 OF 2016

(At Mombasa), C. Yano J. struck out the Reference from the decision rendered by the Taxing Master following the taxation of an Auctioneer’s Bill of Costs.

22. The learned Judge held that the application was incompetent and a non-starter in limine, for failure to comply with the procedure prescribed by

Rule 55 (5)

of the

Auctioneers Rules

.

23. To my mind, that decision constitutes a further affirmation of the legal position that a Reference from Taxation, pursuant to

Paragraph 11

of the

Advocates (Remuneration) Order

is not synonymous with an Appeal pursuant to

Rule 55 (5)

of the

Auctioneers Rules

.

24. In

MACHIRA & CO. ADVOCATES Vs MAGUGU [2002] 2 EA 428

, Ringera J. (as he then was) said;

“As regards the point that the client’s

objections to the taxation itself having

been overruled, the proper remedy to

adopt was an appeal to the High Court

and not a reference under paragraph 11

of the Remuneration Order, I have the

following to say:

First, the Advocates (Remuneration)

Order is a complete code and there is no

provision for the invocation of the Civil

Procedure Rules. It does not provide for

an appeal from any sort of decision by

the taxing officer.”

25. The question that must now be answered is whether or not the Applicant had filed a Reference, instead of an appeal.

26. On the face of the document filed by the Applicant on 21

st

October 2020, the heading reads as follows;

“

CHAMBER SUMMONS

(Memorandum of Appeal pursuant to

Rule 55 (5) of the Auctioneers Rules

1997 (Rev. 2012) AND the Chief

Magistrate for reasons or taxation

dated 15.10.2020)”

27. It is clear that the Applicant filed a Memorandum of Appeal, by way of a Chamber Summons. Therefore, I find that the Applicant complied with the provisions of

Rule 55 (5)

of the

Auctioneers Rules

.

28. I further find that the use of the word

“Reference”

in the Chamber Summons dated 21

st

October 2020 does not alter the fact that the document before the Court is a Memorandum of Appeal.

29. Accordingly, the Preliminary Objection herein is overruled. The Respondent will pay to the Applicant, the costs of the said Preliminary Objection.

DATED, SIGNED and DELIVERED at KISUMU This 28

th

day of January 2021

FRED A. OCHIENG

JUDGE