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ELCDismissedConstitutional Petition No. (Kisii) of 2016 – Reference on Assessment of Court Fees· [2016] KEELC 30 (KLR)

Zedekiah Ondari Kenyoru v Kitutu Chache South Constituency Development Fund Board & 2 others [2016] KEELC 30 (KLR)

High Court of Kenya
25 November 2016
1,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that constitutional petitions must pay court fees per distinct prayer, not a flat fee.

What this practically means

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Executive summary

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The petitioner filed a constitutional petition at Kisii on 8th August 2016 seeking declarations that his property (Kisii Township/Block I/613) had been unlawfully entered upon for construction of administration police units, a permanent injunction and damages. The registry assessed filing fees at Kshs. 30,125/=. The petitioner protested to the Deputy Registrar, contending the fees exceeded the lawful fees, that no provision authorised charging per prayer, and that only Kshs. 6,000/= was prescribed for filing a constitutional petition under paragraph 12 of the Schedule to Part IX Section 1(12) of the Judicature Act and Legal Notice No. 294 of 1995. The Deputy Registrar upheld the assessment by reference to the High Court Registry Operation Manual, prompting a reference to the judge in chambers under Rule 2(3) of the High Court (Practice and Procedure) Rules. Mutungi J held that the 1995 Gazette Notice predated the 2010 Constitution and offered no clarity for modern petitions; under Rule 33 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, petitions attract the same fees as civil proceedings in the High Court, and where a petition seeks separate and distinct orders, fees ought to be assessed per prayer. The petitioner's prayers for declaration of ownership, injunction and damages were distinctive and would attract separate fees in civil proceedings. The court also observed that the Registry Operation Manual is not a legal document for fee assessment and should be operationalised by rules made by the Chief Justice. The reference was disallowed.

Key legal issues

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01

Basis for assessment of court fees on a constitutional petition

Holding

Petitions are chargeable the same fees as civil proceedings in the High Court under Rule 33 of the Practice and Procedure Rules, 2013, and where separate and distinct orders are sought, fees are assessed per prayer

Reasoning

The 1995 Gazette Notice predates the 2010 Constitution, when petitions were a rarity; the 2013 Practice and Procedure Rules now govern fees for proceedings under them, importing civil-proceeding fees. Since petitions increasingly seek distinct declarations, injunctive relief and damages beyond a violation declaration, each distinct prayer justifies a separate fee, mirroring civil practice. The present petition's prayers for declaration of ownership, injunction and damages were distinctive and would be separately assessed in civil proceedings.

p. 4
02

Validity of the Registry Operation Manual as a basis for fee assessment

Holding

The manual is not a legal instrument for assessing fees; it must be operationalised by rules made by the Chief Justice

Reasoning

The manual was an administrative initiative to standardize registry operations countrywide, not rules made under Section 10 of the Judicature Act empowering the Chief Justice to prescribe fees. While laudable, to the extent it affects prescribed fees it requires the Chief Justice to make appropriate rules. Its use for the assessment was thus questionable, though the fee itself was justified under Rule 33.

p. 4

Legal principles established

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  • Under Rule 33 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, constitutional petitions are chargeable the same court fees as payable in respect of civil proceedings in the High Court, insofar as applicable, and where a petition seeks separate and distinct orders the fees ought to be assessed per prayer
  • The High Court Registry Operation Manual is not a legal document and cannot be used to assess court fees, since it was not made by the Chief Justice pursuant to Section 10 of the Judicature Act

Court orders

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  1. 1.The reference is disallowed
  2. 2.The fee assessed for filing of the petition was upheld as appropriate

Authorities

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Legislation

  • Judicature Act (Cap 8 Laws of Kenya)Section 1(12) Part IX Schedule, paragraph 12; Section 10
  • High Court (Practice and Procedure) RulesPart IX on court fees, Rule 2 and Rule 2(3)
  • Legal Gazette Notice No. 294 of 1995Paragraph 37
  • Constitution of Kenya, 2010Article 22(1), Article 22(3)
  • The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Legal Notice No. 117 of 2013)Rule 33; Rule 34(1)
Jurisdiction invoked
Rule 2(3) of the High Court (Practice and Procedure) Rules made pursuant to Section 10 of the Judicature Act (Cap 8) – reference to a judge in chambers against a decision of the registry on a protest of court fees assessment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zedekiah Ondari Kenyoru v Kitutu Chache South Constituency Development Fund Board & 2 others [2016] KEELC 30 (KLR)", Case Analysis (2016). Constitutional Petition No. (Kisii) of 2016 – Reference on Assessment of Court Fees. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/30/eng@2016-11-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.