Independent Electoral and Boundaries Commission v John Omollo Nyakongo t/a H.R Ganijee & Sons [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
D.O. Chepkwony
Judgment Date
October 28, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Independent Electoral and Boundaries Commission v John Omollo Nyakongo t/a H.R Ganijee & Sons [2020] eKLR


1. Case Information:
- Name of the Case: Independent Electoral and Boundaries Commission v. John Omollo Nyakongo T/A H.R Ganijee & Sons
- Case Number: Misc. Application No. 79 of 2020
- Court: High Court of Kenya at Mombasa
- Date Delivered: October 28, 2020
- Category of Law: Civil
- Judge(s): D.O. Chepkwony
- Country: Kenya

2. Questions Presented:
The central legal issues before the court included:
1. Whether the application should have been filed in the same file as the taxation proceedings (Mombasa High Court Misc. File No. 332 of 2019).
2. Whether the Applicant complied with Rule 11(1) of the Advocates Remuneration Order regarding the Notice of Objection.
3. Whether the court should extend the time for the Applicant to file a reference challenging the Taxing Master’s ruling.

3. Facts of the Case:
The Applicant, the Independent Electoral and Boundaries Commission, sought to challenge a ruling by the Taxing Master, which awarded the Respondent, John Omollo Nyakongo, Kshs. 5,782,746.39 as costs on a party and party Bill of Costs dated August 30, 2019. The Applicant expressed dissatisfaction with the ruling and requested reasons for it from the Deputy Registrar, but received no response despite multiple follow-ups. The Respondent opposed the application, arguing that the Applicant failed to comply with procedural requirements and that the application was improperly filed.

4. Procedural History:
The Applicant initiated the application through a Notice of Motion on March 19, 2020, seeking a stay of the Taxing Master’s ruling, an extension of time to file a reference, and costs of the application. The Respondent filed a Replying Affidavit on July 29, 2020, challenging the application’s validity. The court set the matter for written submissions, and subsequently, the Applicant dropped one of its prayers and sought to file supplementary submissions.

5. Analysis:
Rules:
The court considered relevant provisions under the Advocates Act, specifically Section 44, Rule 11 of the Advocates Remuneration Order, and Section 3A of the Civil Procedure Act. Rule 11 outlines the procedures for objecting to a Taxing Master’s decision, including the requirement to file a Notice of Objection within 14 days.

Case Law:
The court referenced several cases to elucidate the requirements of Rule 11, including *Lubullelah & Associates Advocates v. Kenyatta National Hospital* [2010] eKLR and *Hamilton Harrison & Mathews v. Mumbi Ngengi* [2020] eKLR, where it was held that letters requesting reasons from the Taxing Master could suffice as a Notice of Objection. However, the Respondent cited *Macharia & Co. Advocates v. Arthur K. Magugu & Another* [2012] eKLR and *Matiri Mburu & Chepkemboi Advocates v. Occidental Insurance Company Limited* [2017] eKLR, emphasizing the necessity of specificity in objections to ensure clarity in proceedings.

Application:
The court concluded that the application was improperly filed as it did not follow the procedural requirements outlined in Rule 11. It determined that the application should have been made in the same cause under which the taxation occurred. The court found that the failure to file a Notice of Objection within the stipulated time rendered the application incompetent. Consequently, the application was struck out due to lack of jurisdiction.

6. Conclusion:
The High Court ruled against the Applicant, striking out the application on the grounds of improper filing and lack of jurisdiction. This decision underscored the importance of adhering to procedural rules in legal proceedings, particularly regarding the filing of objections in taxation matters.

7. Dissent:
There was no dissenting opinion noted in the case. The ruling was unanimous, with the judge emphasizing the adherence to procedural requirements.

8. Summary:
The High Court of Kenya dismissed the application by the Independent Electoral and Boundaries Commission, affirming that it was improperly filed and lacked jurisdiction. This case highlights the critical nature of following procedural rules in legal disputes, particularly in the context of taxation and cost objections, reinforcing the need for clarity and specificity in legal filings.

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