Thomas Malinda Musau, Stephen Ndambuki Muli & John Nthuli Makenzi v Independent Electoral and Boundaries Commission, Leonard Okemwa (Returning Officer) & Stephen Mutinda Mule (Election Petition 2 of 2013) [2019] KEHC 6666 (KLR) (20 June 2019) (Ruling)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

(Coram: Odunga, J)

ELECTION PETITION NO.  2 OF 2013

THOMAS MALINDA MUSAU...................................1^ST PETITIONER/APPLICANT

STEPHEN NDAMBUKI MULI..................................2^ND PETITIONER/APPLICANT

JOHN NTHULI MAKENZI.......................................3^RD PETITIONER/APPLICANT

VERSUS

INDEPENDENT ELECTORAL AND                                                                                

BOUNDARIES COMMISSION........................................................1^ST RESPONDENT

LEONARD OKEMWA (RETURNING OFFICER).......................2^ND RESPONDENT

STEPHEN MUTINDA MULE..........................................................3^RD RESPONDENT

RULING

1. This ruling is the subject of two applications dated 10^th May 2018 and 13^th September, 2018. The former is an objection to the taxation by the Taxing Officer done on 3^rd March, 2018. To this application, the Respondents have raised an objection to the effect that the application offends paragraph 11(1) of the Advocates Remuneration Order as the applicant never issued notice to the taxing officer of the items objected to and that the application has been filed out of time contrary to paragraph 11(2) of the same Order. In the second application, the petitioners/applicants herein substantially seek an order for recall, cancellation and/or setting aside warrants of attachment of movable property and warrant of sale of property in execution of decree both dated 20^th August, 2018. They also seek a stay of execution of the taxed costs arising from the Ruling and consequential orders of Hon. Kenei (DR) delivered on 3^rd May, 2018 pending the hearing and determination of the intended appeal to the Supreme Court. There is of course the usual prayer for provision for costs.

2. In my view since the disposition of the second application if successful would render the second application superfluous, I intend to deal with the second application first. I say this because if the applicants succeed in having the execution of the decision of the Court of Appeal suspended, it would follow that the taxation of costs which were carried our pursuant to the same decision would stand suspended and if the Supreme Court were to reverse the decision of the Court of Appeal, it would follow that the decision arising from the taxation would itself stand reversed.

3. The said application was based on an affidavit sworn by Thomas Malinda Musau, the 1^st applicant herein. According to the applicants on 3^rd May, 2018, the taxing master Hon. Kenei (DR) delivered a ruling on the 3^rd Respondent’s Bill of Costs which was taxed at Kshs 3,318,546/=. Thereafter the 4^th Respondent served on the 1^st applicant a proclamation notice dated 3^rd September, 2018 together with warrants of attachment of movable property in execution of a decree for money and warrant of sale of property in execution of decree for money both dated 20^th August, 2018. Based on legal advice, the 1^st applicant deposed that in execution of a decree for costs, a certificate of taxation and a decree must be regularly and procedurally first obtained and served upon the judgement debtor before any execution can issue. However, neither the 1^st applicant nor his advocates have ever been served with the said documents requiring him to satisfy the same.

4. The deponent therefore deposed that the said warrants were irregularly and procedurally (sic) obtained contrary to the clear provisions of the law as the 3^rd Respondent has never applied for nor served him with the certificate of taxation and/or application for decree at all despite his advocate advising them to follow the correct procedure.

5. It was further deposed by the 1^st applicant that h on 30^th July, 2013, he successfully challenged the election of the 3^rd Respondent in this petition and was awarded costs. Thereafter the Respondents successfully appealed the said judgement to the Court of Appeal vide Nairobi Civil Appeal No. 219 of 2013 and were awarded the costs the subject of this application. Aggrieved by the judgement of the Court of Appeal, the 1^st applicant filed a Notice of Appeal to the Supreme Court, an application which is still pending. It was therefore the 1^st applicant’s contention that since he has not exhausted all his chances of appeal, it will be unfair and prejudicial for the Respondents to execute the taxed costs against him at this stage. To him, in the event that the intended appeal succeeds, he will suffer severe loss and prejudice since the Respondents will not be in a position to compensate him considering the colossal amount involved.

6. In support of the application, submissions were filed on behalf of the applicant in which it was contended that the procedure for execution of a decree is very clear as set out under Orders 21 Rules 7, 8 and 9 and Order 22 rules 7 and 13 of the Civil Procedure Rules. In this case, the Respondent did not extract or serve the decree being executed; neither did the 3^rd Respondent serve the Applicants with certificate of costs. There was no Decree that was drawn and/or approved capable of being executed and the Certificate of Taxation was not served. According to the applicant since the only legal and executable instrument is a valid court decree a certificate of costs is not an executable instrument, even if the same was served which he denied. In this regard the applicant relied on the case of Rubo Kimngetich Arap Cheruiyot vs. Peter Kiprop Rotich [2006] eKLR.

7. According to the applicant, from the history of this case, the record shows that there is no decree duly approved and signed and none has been served upon the Applicant. Though the Respondent relies on the certificate of costs and the advice from the registry clerks, it was submitted based on the above cited decision that a certificate of cost is not capable of being executed. The applicant reiterated that though the impugned warrants of attachment and sale states that the execution is in respect of the decree of the court passed on 3^rd May, 2018, there is no such decree passed on that date before this Court. Therefore, the said warrants of attachment and sale of movable property to the extent that they are in execution of a decree passed on 3^rd of May, 2018 and/or certificate of costs are illegal, invalid and irregular and the same should be recalled, cancelled and set aside.

8. As regards the prayer for stay pending appeal it was submitted that the genesis of this case emanated from a parliamentary election of Matungulu Constituency in the year 2013 in which the 3^rd Respondent was declared the winner and the Applicants challenged the said election before the Machakos High Court. On 30^th July, 2013, the judgment was delivered in favour of the Applicants wherein, Mutende J. nullified the said election and ordered for a fresh election to be conducted. Being dissatisfied with the said judgment, the 1^st and 2^nd Respondents successfully appealed against the said judgment. Though the 3^rd Respondent did not Appeal, in revising the decision of the High Court, the Court of Appeal awarded the 1^st ,2^nd and 3^rd Respondent costs of the Appeal and those of the High Court. The Applicants herein were again dissatisfied with the decision of the Court of Appeal and filed an application for leave to file an Appeal to the Supreme Court on 7^th February, 2014 vide Court of Appeal at Nairobi Civil Application No. SUP 4 of 2014 (UR 4/2014) which application, it was deposed was coming up for hearing on 29^th November, 2018.

9. It was therefore the applicants’ position that they have not exhausted their chances of Appeal. Though the Respondent contends that this court cannot stay the Judgment of the Court of Appeal, the position adopted by the applicants was that since the taxed costs subject of this Application are costs deemed to be awarded by the High Court following the Court of Appeal judgment quashing the High Court Judgment, these are costs taxed by the High Court and not the Court of Appeal and any challenge or dispute on costs taxed by the taxing officer of the High Court can only be addressed and challenged before a judge of the High Court.

10. It was the applicants’ case that if the intended Appeal to the Supreme Court succeeds and the High Court decision upheld and affirmed, the liability on costs will automatically change which may then create confusion and unnecessary conflict and a tall order to recover the costs in the event the same is executed. It was in line of the above observation that they were hesitant in having the bill taxed as the same is purely premature. It follows the normal cause that taxation should await the outcome of the decision of the court which an appeal has been preferred even if there are no stay orders in place. It is only in the best interest of justice and fairness that the execution of the taxed costs herein be put on hold.

11. According to the applicants, this Court has powers and discretion to grant the orders sought. In exercising that discretion, the court ought to consider the prejudice the Applicant is likely to suffer in the event the orders are not granted. The Honourable court is also enjoined to foresee the likely consequences in the event the intended Appeal succeeds. As stated above, the intended Appeal if successful, the question of who should bear the costs would shift.

12. The applicants therefore were of the view that they have demonstrated that the procedure adopted by the 3^rd Respondent in execution of the taxed costs was irregular and unprocedural as the 3^rd Respondent by-passed the mandatory provisions of the law and therefore the warrants of attachment and sale as issued were irregular and illegal and the same should be cancelled.

13. Secondly, the Applicant has demonstrated that there is need to stay execution of the taxed costs. The Applicant has not exhausted his chances of Appeal and as such execution of costs should be held in abeyance to await the outcome of the intended Appeal to the Supreme Court.

14. The application was however opposed by the 3^rd and 4^th Respondents by way of both grounds of opposition and a replying affidavit. In the grounds the Respondents contended that:

1. The application as it purports to be an objection to the attachment of the 1^st applicants motor vehicle is without merit and is incompetent.

2. There is no affidavit in support of Application by the 2^nd and 3^rd Applicants.

3. The Application is without merit, baseless, and abuse of the court process and intended to delay realization of the taxed costs by the 3^rd Respondent.

4. There is no stay of Court of Appeal Judgment in Civil Appeal   No. 219 Of 2013

5. This Honourable Court does not have the jurisdiction to stay the court of Appeal Judgment.

15.  Apart from setting out the history of the litigation, it was deposed that following the taxation of the Respondents’ costs, the Respondents applied for and obtained from the court a certificate of costs dated 22^nd May, 2018. Following the non-settlement of the same, the Respondents applied for execution by way of attachment and sale of movable properties and warrants of attachment which were regularly issued by the court and allocated to the auctioneers. It was deposed that the registry’s advice was that a decree is not necessary for execution of taxed costs as a decree is only necessary for enforcement of other reliefs ordered by the court. It was averred that since the applicants have not objected to the costs as taxed, they are not disputing the same.

16. It was the Respondents’ position that Civil Application No. SUP 4 of 2014 filed in the Court of Appeal is extraneous and irrelevant to these proceedings as the same is pending in that court and this court cannot hear and determine it and there is no stay of the court of appeal judgement. To the Respondents, by this application the applicants are seeking a stay of execution of the court of appeal judgement through the backdoor which cannot be entertained by this court as this court has no jurisdiction to stay the same.

17. It was averred that the 3^rd Respondent is the sitting Member of the National Assembly for Matungulu Constituency hence is a person of means and can easily refund the costs of the applicants in the event that the intended appeal were to succeed. Accordingly, the 3^rd Respondent ought to be allowed to proceed with the execution of his costs which have been pending for the last 5 years.

18. It was therefore averred that this application is devoid of merit and should be dismissed with costs.

19. In their submissions, the 3^rd and 4^th Respondents contended that the 1^st applicant Thomas Malinda Musau objects to the attachment of motor vehicles registration number KCL 784Y, Toyota Prado and KBS 265E Toyota Premio on grounds they do not belong to him.  To prove why they do not belong to him he has attached as exhibit “TMM-2a” registration certificates of the two motor vehicles which shows the registered owners of the Prado as at 28^th June, 2017 were the Co-operative Bank of Kenya Limited and Nouvetti Realtors Limited while the registered owner of the Premio as at 5^th June, 2012 was Michael Kivavi Mwanzia.

20. It was however contended that in the replying affidavit, it was deposed which deposition was not challenged that the Auctioneer had carried out investigations to establish ownership of the motor vehicles and he carried out the proclamations after establishing they were in the 1^st Applicant’s possession, he is the one who was driving them or were being driven under his authority.  While the person in whose name a motor vehicle is registered is deemed to be owner of the motor vehicle under section 8 of the Traffic Act, the same section has a provision that the contrary can be proved, that the registered owner is not the owner.

21. Besides it was submitted that the objection to the attachment by the 1^st Applicant on grounds he is not the owner is incompetent.  If the motor vehicles do not belong to the 1^st Applicant, the registered owners are the ones who should have brought objection to the attachment of their motor vehicles under Order 22 Rule 51 of the Civil Procedure Rules.  The fact that the registered owners have not raised any objection is further proof the vehicles belong to the 1^st Applicant.  The objection by the 1^st Applicant, not being the registered owner and such objection not being done in accordance to Rule 51 is incompetent.

22. It was further contended that a perusal of the application clearly shows the 2^nd and 3^rd applicants are not parties to the application which has only been brought by the 1^st Applicant. They have not sworn any affidavit to oppose the proclamation of their properties and neither has the 1^st Applicant deposed that he has brought the application with their authority and attached both authorities. Indeed, his supporting affidavit only objects to the attachment of his two motor vehicles but mentions none of the other goods in the proclamation which belong to the 2^nd and 3^rd Applicants.

23. It was therefore argued that even if the 1^st Applicant were to be successful, this Honourable court should not grant orders of stay, recall or cancel the warrant of attachment against the 2^nd and 3^rd Applicants properties as they have clearly not sought such orders. The execution against them should proceed in any event.

24. According to the said Respondents, the 3^rd Respondents bill of costs was taxed at Kshs. 3,318,504.00 in a ruling delivered by the Deputy Registrar Honourable K. Kenei on the 3^rd May, 2018 after relying on written submissions of the 3^rd Respondent and those of the Applicants. The Applicants have never expressed any dissatisfaction with that ruling.  On the date of the ruling they sought to be given and were so given 60 days to pay the taxed amount.  Since they did not pay within the granted 60 days, the 3^rd respondent to realise his fruits of successful litigation applied for execution by way of attachment of the Applicants movable properties.

25. As regards the issue that there ought to have been a decree prior to the issuance of the warrants of attachment, it was submitted that the decree as correctly advised by the court, was not necessary for execution of costs since there is a ruling and a duly certified certificate of costs. And the ruling is an order of the court. According to the said Respondents, section 28 of the Civil Procedure Act on execution provides execution of decrees shall, as far as they are applicable, be deemed to apply to the execution of orders and the whole part III of the Act makes provisions on execution of both decrees and orders.  Based on the said section and Order 22, it was submitted that it is clear it is not only decrees that are capable of execution since orders of the court are also executable. It was therefore submitted that the objection to the attachment on grounds there was no decree is without any legal basis, is without merit and should be dismissed. To the said Respondents, the court could not have issued the warrants of attachment, as it did if there was no order of court to be executed. It was therefore submitted that the Applicants application on this ground is clearly an abuse of the court process and only meant to delay the realisation of fruits of successful litigation by the 3^rd Respondent and should not be allowed.

26. The said Respondents further submitted that a judgement of the Court of Appeal can only be stayed by that court.  What the 1^st Applicant is attempting to do in this application is to obtain a stay of the Court of Appeal judgment through the back door which should not be allowed as this Court does not have the jurisdiction to stay the court of Appeal Judgment.

27. In the said Respondents’ view, this court is functus officio.  The pendency of an application for a certificate by the Court of Appeal to appeal against the judgment to the supreme court, cannot be the basis of staying execution in this court. It is only the Court of Appeal which can stay its own judgment having not done so, its judgment is binding on this court.

28. It was therefore the said Respondents’ case that this application should be dismissed with costs.

29. I have considered the issues raised in respect of the application dated 13^th September, 2018.

30. Starting with the issue whether this court can stay the execution of the taxed costs herein pending appeal to the Supreme Court, it is clear that the decision of the taxing officer on taxation was a product of the decision of the Court of Appeal. It was that court that ordered the applicant herein to pay the costs and the taxation process was simply an implementation of the said decision. The taxing officer was therefore not implementing the decision of this court but that of the Court of Appeal.

31. The taxation of the costs of the Court of Appeal are governed by rule 11 of the Court of Appeal Rules which provides that:

 (1) The Registrar shall be a taxing officer with power to tax

the costs arising out any application or appeal to the Court as between party and party

(2) Such costs shall be taxed in accordance with the rules and

scale set out in the Third Schedule.

(3) The remuneration of an advocate by his clients in respect of

application or appeal shall be governed by the rules and scales to proceedings in the High Court.

32. However, in rule 2, “Registrar” means the Registrar of the Court and includes a deputy registrar thereof. On the other hand, “deputy registrar” means a deputy registrar of the Court. “Court” under the same rules means the Court of Appeal and includes a division thereof and a single judge exercising any power vested in him sitting alone. It follows that when taxing costs arising from a decision made by the Court of Appeal, the Taxing Officer is a deputy registrar of the Court of Appeal and not of the High Court. Accordingly, this Court cannot purport to stay his/her decision. That fact will become clear in a short while. It therefore follows that the limb of this application seeking a stay of execution of the said decision pending an appeal to the Supreme Court is misconceived and incompetent due to want of jurisdiction.

33.   As regards the issue whether it was necessary for a decree to be extracted before execution process could be put into motion, I agree that the view adopted by Ibrahim, J (as he then was) in Rubo Kimngetich Arap Cheruiyot vs. Peter Kiprop Rotich [2006] eKLR is generally the correct legal position. In that case the learned judge held that:

“It is my view that a Decree duly approved and signed had to be on record for any execution to take place, whether for the eviction, costs or otherwise.  As far as the parties in a suit are concerned, a certificate of costs is not an executable legal instrument.  A certificate of costs is not capable of being “executed”.  Warrants of attachment and sale cannot in law be issued on the basis of a certificate of costs.  There must be a decree first. It is true that the Decree may not be necessarily or always contain the ascertained costs.  Costs can be determined before a decree is issued or subsequently, after the Decree has been drawn.  However, for one to recover costs, there must be a decree.  Any money awarded by court including costs is only payable under a decree…”

34. However, rule 108 of the Court of Appeal Rules provides that:

(1) When making any decision as to the payment of costs, the Court may assess the same or direct them to be taxed and any decision as to the payment of costs, not being a decision whereby the amount of the costs is assessed, shall operate as a direction that the costs be taxed.

(2) For the purpose of execution in respect of costs, the decision

of the court directing taxation and the certificate of the taxing officer as to the result of such taxation shall together be deemed to be a decree.

35. It is not in doubt that there was an order directing taxation. That order taken together with the certificate of costs are together deemed as a decree. Therefore, no further decree is required to be extracted for the purposes of execution.

36. I also agree that if the respondents attached a property belonging to another person the right procedure is for the person claiming to be having an interest therein to commence objection proceedings. It is not for the applicants herein to step into the shoes of the objector as a party to the suit cannot undertake both roles in the same suit.

37. In the premises, the application dated 13^th September, 2018 fails and is dismissed with costs.

38. As regards whether the reference brought by way of the application dated 10^th May 2018 is incompetent for failure to comply with paragraph 11 of the Advocates Remuneration Order, I agree with the position in Machira & Co. Advocates vs. Arthur K. Magugu & Another [2012] eKLR that:

“Sub-rule (1) requires the party objecting to give notice in writing within 14 days “of the items of taxation to which he objects.” As the trial judge correctly found, the Respondents notice of 1^st August 2001 did not comply with that provision. It did not specify the items objected to so that the taxing officer could give his reasons on them. As we have pointed out the intendment of the Rules Committee in providing for objections to bills of costs to be dealt with by references and not appeals or reviews was expedition. If vague notices are given taxing officers might be forced to give their reasons for their taxation of each item including even those not objected to. That would of course defeat the purpose of that expeditious procedure. Having not specified the items objected to and sought reasons for their taxation, the Respondents notice of 1^st August 2001 was fatally defective. It follows that the Respondents reference based on it was incompetent and we agree with counsel for the Appellant that it should have been struck out. Having not given a proper notice specifying the items objected to and seeking the reasons for their taxation at the figures they were taxed, the issue of when the taxing master’s decision was received is immaterial and does not avail the Respondents. Under sub-rule (2), time stops running from the date a proper notice is filed, which of course must be within 14 days of taxation, until receipt of the taxing master’s reasons for his decision.”

39. I also agree with the decision in Matiri Mburu & Chepkemboi Advocates vs. Occidental Insurance Company Limited [2017] eKLR that:

“6…the provisions of paragraph 11 of the Remuneration Order serve several purposes. Firstly the requirement that a party seeking reasons gives notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection.  Thus the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages.

 7. The objective is obvious: the expeditious disposal of taxation disputes.  Thus compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest.  The provisions of Article 159 (2) (d) of the Constitution were not intended to overthrow procedural or technical requirements, but to guard against “undue regard” to procedural technicalities in the administration of justice.

 8. In this instance the requirements of Paragraph 11 of the Remuneration Order serve a clear purpose and have an important place in taxation disputes as stated above.  There is no reason demonstrated as to why the Applicant herein should be exempted from the requirements.  To proceed with the Reference without the benefit of considered reasons for the ruling by the taxing master, the parties and indeed the court may have to engage in the unenviable and unnecessary task of guess work and speculation as to the actual reasons behind the taxation decision.  That is undesirable and inimical to the administration of justice. 

9. For all these reasons I do agree with the Respondents’ submissions that the present Reference was filed prematurely and is incompetent in absence of the taxing master’s reasons.  I do therefore strike out the Reference with costs to the Respondents.”

40. In the above cases the courts correctly in my view set out the reasons for seeking reasons for the decision on taxation. In my view, rule 11 of the Advocates Remuneration Order presupposes that the decision on taxation does not contain reasons. In that event it makes sense to request for the reasons therefor before commencing the reference. However, where detailed reasons are given in the decision it would respectfully be foolhardy to wait for reasons. I therefore reiterate this Court’s position in Evans Thiga Gaturu, Advocate vs. Kenya Commercial Bank Limited [2012] eKLR that:

“…where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the Judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles. However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference. Otherwise mere adherence to the procedure may lead to absurd results if the advocate was to continue waiting for reasons, as it happened in the case of Kerandi Manduku & Company vs. Gathecha Holdings Limited Nairobi (Milimani) HCMA No. 202 of 2005, where the taxing officer had left the judiciary. Where reasons are contained in the decision, I share the view that to file the reference more than 14 days after the delivery of the same would render the reference incompetent. In the present case, the ruling on taxation was made on 6th July 2011. If the client considered the said decision to contain the reasons, he could file the reference within 14 days from the date thereof. If, on the other hand, he was of the view that there were no reasons contained in the decision, he could request for the same in writing, in which case, he would be bound to wait for the same. If, however, at a later stage he decided to prefer the reference notwithstanding the failure by the Taxing Master, after the lapse of the 14 day period, it is my view that he would be bound to apply for extension of time under paragraph 11(4) of the Remuneration Order, in which case one of the grounds if not the only ground would be the failure by the Taxing Master to furnish him with the reasons which, according to the decision in Kipkorir, Titoo & Kiara Advocates (ibid), is a ground for allowing a reference. However, a party would not be entitled to an indefinite period within which to prefer a reference simply because the reasons were not given if even by the time of making the same reference, the said reasons have not been furnished.”

41. It therefore my view and I hold that the said application is not incompetent on that score.

42. However, taxation of costs arising from a decision of the Court of Appeal is not governed by the Advocates Act and the Advocates Remuneration Order. This is so because section 2 of the said Act provides that: In this Act, unless the context otherwise requires…“Court” means the High Court. Rule 112 of the Court of Appeal Rules provides that:

(1) Any person who is dissatisfied with a decision of the

Registrar in his capacity as taxing officer may require any matter of law or principle to be referred to a judge for his decision and the judge shall determine the matter as the justice of the case may require; and for the purpose of this sub rule, any decision extending or refusing to extend time for the lodging of a bill of costs or any exercise by the Registrar of the over-riding discretion given him by paragraph 12 of the Third Schedule shall be deemed to involve a matter of principle.

(2) Any person who contends that a bill of costs as taxed is, in all

the circumstances, manifestly excessive or manifestly inadequate, may require the bill to be referred to a judge and the judge shall have power to make such deduction or addition as will render the bill reasonable and except as in this sub-rule provided, there shall be no reference on a question of quantum only.

(3) An application for a reference may be made to the Registrar

informally at the time of taxation or by writing within seven days thereafter.

(4) A reference to a judge may be adjourned by him for the

consideration of the Court.

(5) Any person dissatisfied by the decision of a judge given

under sub-rule (1) or sub-rule (2) may apply to the Court to vary, discharge or reverse the same and such application, may be made either informally to the judge at the time of the decision or by writing to the Registrar within seven days of the time.

43. What the foregoing provides is that taxation of the costs of the Court of Appeal are to be conducted by the registrar or deputy registrar. Once that is done any person dissatisfied by the decision of the registrar is at liberty to refer the matter to a judge. In rule 2 of the Court of Appeal Rules, “judge” means a judge of the Court acting as such while “Court” means the Court of Appeal and includes a division thereof and a single judge exercising any power vested in him sitting alone. It follows that any reference from the decision of the Taxing Officer in such maters can only be made to a judge as defined under the Court of Appeal Rules and that is a judge of the Court of Appeal.

44. It follows that the application dated 10^th May 2018 is incompetently before me. The same is hereby struck out with costs.

45. Those shall be the orders of this court.

Read, signed and delivered in open Court at Machakos this 20^th day of June, 2019.

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Wambugu for Mr Ayieko for the Petitioner.

Miss Kamau B. M for Mr Kiugu for the 3^rd and 4^th Respondents

CA Geoffrey