Hassan & another (As Administrators of the Estate of Mohamed Hassan Gichunge also known as Mohamed Gichunge Hassan also known as M. Kishungi H. Kitonga - Deceased) v Hassan & 2 others

2. When taxation was done however, the 1st respondent got assessed costs amounting to Kshs 123,877 only. This was not very pleasing to him and he decided to contest the assessed costs via the reference rst led here on November 8, 2022 and subsequently amended and re-led on April 12, 2022. 3. The amended reference was responded to via a replying adavit was led together with the preliminary objection now under consideration. The reasons for the objection were concisely spelt out thus: 1. That the purported reference before court is incompetent for being led out of time without leave and should be struck out with costs. 2. That the application is incompetent for being supported by an adavit by applicants counsel in a contentious matter/application. 3. That the reference before court is an abuse of the court process and should be dismissed with costs in … 4. The objection was canvassed by way of written submissions. The applicants submissions were led on December 6, 2022. In the submissions, the applicants pointed out some shortcomings in the amended reference, which included lack of a supporting adavit and a noticeable tweaking of grounds in the amended reference compared to the grounds that had been stated in the original reference. 5. The submissions also sought to persuade the court that the objection is based on pure points of Law. In this regard, the case of Mary Wangari Kiarie Vs Safaricom (K) Limited (2021), eKLR which cited with approval the case of Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributers [1969] EA 696, was proered for persuasion. 6. According to the applicants, the reference is incompetent for being led out of time without leave of court. It is incompetent also for being accompanied by a supporting adavit sworn by 1st respondents counsel who, according to applicants, should not make depositions in a contentious matter. The cases of Kwacha Communications Limited & Another Vs Pindora Holdings Limited & Another [2022] eKLR, Hakika Transporters Services Ltd Vs Albert Chulah Wamimitaire [2016] eKLR and Magnolia Pvt Limited Vs Synermed Pharmaceuticals (K) Ltd [2018] eKLR were cited to emphasise that advocates should not swear adavit in contested or contentious issues. 7. The last point made is that the reference is an abuse of the court process. This pint was made allegedly because the reference was led late and the amended one came without a supporting adavit. To drive the point home, the cases of William Odhiambo Ramogi & Others Vs The Attorney General & Others: Petition No 159 Of 2018 (as consolidated with Petition No 201 of 2019), Mombasa, Ephraim Miano Thamaini Vs Nancy Wanjiru Wangai & 2 Others [2022] eKLR, Muchanza Inestments Limited Vs Safaris Unlimited (Africa) LTD & 2 Others: Civil Appeal No 25 of 2002 [2009] eKLR were all cited for guidance and/or for desired eect. 8. The court was ultimately urged to allow the objection. 9. The 1st respondents submissions were led on November 30, 2022. The 1st respondent cited the cases of Charles Onchari Ogoti Vs Safaricom Limited & Another [2020] eKLR and Nitin Properties Ltd Vs Singh Kalsi & Another [1995] eKLR among others to make the point that a preliminary objection should be based on a pure point of law. He then submitted that the rst point in the preliminary objection is raised for reason that it was led out of time. He further submitted that computation of time needs to be premised on facts and evidence is required to demonstrate when the reference was led and when time lapsed. According to the 1st respondent the reference was led within time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18827/eng@2023-01-31 2

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10. The 1st respondent also submitted that the issue of the value of the property is contentious. The applicants were said to have been required to oer strict proof of the value. 11. Overall, the thrust of the 1st respondents submissions is that the objection is premised on contentious facts and does not there qualify to be a preliminary objection. 12. I have considered the objection and the rival submissions led by the parties. I have also had a look at the entire matter generally. In my view, the second and third points in the preliminary objection do not qualify as points of law. To the applicants, the adavit supporting the reference should not have been sworn by the 1st respondents counsel as it is based on contentious matters. I have read the supporting adavit. It appears to me that the depositions in it are matters that the 1st respondents counsel knows or can be deemed to know. He and not the 1st respondent, can be assumed to know, their correctness or truth. They mostly refer to what has transpired in this matter and the counsel is the one steering the matter in court. 13. The applicants also felt that the reference is an abuse of the court process. In my view, whether or not the reference is an abuse of the court process requires probing of evidence and prove of facts. The 1st respondent had raised a point like this in an earlier preliminary objection which led to the striking out of the suit. I had rejected that point and observed that it does not qualify to be treated as an objection. I do the same in this objection. 14. The rst point raised in the preliminary objection is a pure point of law in my view. It is the law that states the period within which a reference can be led. But as observed by the 1st respondent, the fact whether the reference was led within time is one requiring to be ascertained. According to the 1st respondent, the reference was led within time. Of course the applicants have a contrary view. I agree with the 1st respondent that proof is required regarding computation of time. 15. The upshot, when all is considered, is that the merits of the preliminary objection herein have not been demonstrated. The court therefore dismisses the objection with costs to the 1st respondent. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 31ST DAY OF JANUARY, 2023. A.K. KANIARU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18827/eng@2023-01-31 3

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