JAMES MWARARI GATOME & 8 others v LAND SURVEYOR’S BOARD [2006] KEHC 599 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Appeal 525 of 2005

JAMES MWARARI GATOME ……………..……................….. 1^ST APPELLANT

PATRICK R. KIBUCHI ………………...…………................…. 2^ND APPELLANT

S. P. NJAGI …………………………...…………….............….. 3^RD APPELLANT

PATRICK M. LYNUS ………………..…………...............……. 4^TH APPELLANT

L. M. M’MBWI …………………………………................…….. 5^TH APPELLANT

J. M. NDERITU …………………………………..............…….. 6^TH APPELLANT

JASON KABURO ………………………..…….............……… 7^TH APPELLANT

IBRAHIM ISAACK JARI T/A GATOME & ASSOCIATES …8^TH APPELLANT

VERSUS

LAND SURVEYOR’S BOARD ……………….............………… RESPONDENT

(Appeal under Section 18 of The Survey Act, Chapter 299 of Laws of Kenya from the decision of the Land Surveyor’s Board delivered on 18^th July, 2005 under Section 17 of The Survey Act Chapter 299 of the Laws of Kenya Section 3, 3A, 5, 75(h), 78 of Civil Procedure Act, Chapter 21 of Laws of Kenya and Order XLI of Civil Procedure Rules, Section 77 of the Constitution and all other enabling provisions of Law)

RULING

This application, brought under Order 44 Rule 1 of the Civil Procedure Rules, seeks to review and set aside the Consent Order of 10^th March, 2006 entered into between the two Counsels, on behalf of their clients, settling the Respondent’s bill of costs in the sum of Kshs.400,000/=.

Now, that Consent was recorded before the Deputy Registrar who then issued the Certificate of Taxation.  Why then is this Application before me?

Counsel for the Applicant submitted that the Deputy Registrar having issued the Certificate of Taxation was functus officio, and that this application must therefore be heard before the High Court.  I would disagree with that proposition.  What is before me is NOT a reference from the decision of the Taxing Officer, because if it were, it would not be brought under Order 44, and the Reasons for the Registrar’s Ruling would be required before the application could be heard.  There is no such thing here.  This is pure and simple an application for review under Order 44 (1), and in accordance with Order 44 (4) it must be heard by the Deputy Registrar who made the Order, whether by Consent or otherwise.

Accordingly, this application is incompetently before this Court, and the same is struck out with costs.

Dated and delivered at Nairobi this 27^th day of November, 2006.

ALNASHIR VISRAM

JUDGE