[2020] KEHC 5319 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

COMMERCIAL AND ADMIRALTY DIVISION COMMERCIAL CIVIL CASE NO. 30 OF 2018

IN THE MATTER OF TAXATION OF PARTY AND PARTY BILL OF COSTS

BETWEEN

4MB MINING LIMITED............................PLAINTIFF/RESPONDENT

VERSUS

MISNAK INTERNATIONAL

(UK) LIMITED..............................................DEFENDANT/APPLICANT

AND

TOTAL LINK LOGISTICS...........................1ST INTERESTED PARTY

UNION LINK LOGISTICS..........................2ND INTERESTED PARTY

FREIGHT FORWARDERS (K) LTD..........3RD INTERESTED PARTY

RULING

The Application

1. The Applicant filed a Notice of Motion application dated 6th November, 2019 seeking orders that:-

a. Judgment be entered in favour of the Defendant/ Applicant upholding the Preliminary Objection dated 7th May, 2018.

b. The Court file of the present suit be placed before the taxing

c. This Honourable Court be pleased to make such orders as may deem fit.

2. The Notice of Motion is supported by an affidavit of KEVIN OKERE sworn 6th November, 2019 in which he avers that the Defendant filed a Preliminary Objection in this suit dated 7th May, 2018 seeking the dismissal of the present suit filed by the Plaintiff by a Ruling dated 6th July, 2018 delivered by this Court. That the Defendant appealed the decision in Court of Appeal vide Civil Appeal No. 118 of 2018 whereby the court overturned the decision , upheld the preliminary objection and awarded costs to the Defendant/Applicant.

The Response

3. The Respondent filed Grounds of Opposition in respect of the Defendant’s Notice of Motion dated 11th December, 2019 and averred that the Application is belated, ill-conceived , misinformed and tainted with malafides and prayed for the Application to be dismissed with costs.

Hearing and submissions.

4. The matter was canvassed orally through Mr. Okere for the Defendant/ Applicant and Mr. Ogura for the Plaintiff/Respondent.

Analysis and Determination.

5. I have carefully considered the application and the submissions by the Counsels. The only issue that arises herein for determination is whether Court file should be placed before the taxing officer for assessment of costs as the issue of whether or not Judgment was entered in favour of the Defendant/Applicant was already decided by the Court of Appeal in Civil Appeal No. 118 of 2018. It is important to note that the Court at this instance will not look into the merits and or demerits of the Preliminary Objection dated 11th July, 2018 and neither will it task itself with items in the lodged Bill of Costs. The Applicant only seeks for the Judgment to be endorsed and file placed before the Taxing Officer as is required. The Respondent controverts this as per the Grounds of Opposition dated 11th December,2019 for being grossly incompetent, fatally defective, frivolous, vexatious, wholly unmerited and ought to be struck out,

6. The provisions of Section 94 of the Civil Procedure Act have been a subject of Court’s consideration in various cases and principles laid down, some of which I will consider. For instance, the courts have held that before execution proceeds, leave of the Court must be granted. The leave is granted at the discretion of the Court and ought to be as a result of an Application either orally at the passing of the decree or formally thereafter. This is so as to give the opposing party an opportunity to be heard.

7. In the case of Muniafu Vs Ndwiga (1990) Llr 5529,Shah J. as he then was, held that Section 94 of Civil Procedure Act gives the High Court discretion to allow execution before taxation. The learned Judge stated:-

“There has to be in my view an application to the High Court (there being no specific mode provided under section 94) by notice of motion as provided for in Order L Rule 1. Again under Order 50, applications (procedurally) have to be served on the other side (order L Rule 2) unless otherwise stated by court which special and good reasons must exist?”

8. This was also the finding in the case of Bamburi Portland Cement Co. Ltd v Hussein (1995) LLR 1870 (CAK) , where Shah JA stated as follows:-

“Section 94 of the Civil Procedure Act requires that for execution of a decree before taxation leave must be obtained from the High Court, such leave may be sought informally at the time judgment is delivered but if that is not done then it must be made by way of a notice of motion. The motion must be served on the other party and heard inter parties. Order 21 Rule 7(4) of the Civil Procedure Rules purports to confer on the registrar and deputy registrar the power specifically given to High Court under section 94 of the Act. Rule 7(4) is clearly ultra vires section 94 of the Act because the section reserves that power exclusively to the High Court.”

9. I entirely concur with this observation of the above- mentioned decisions and the legal principles laid therein. That to execute a decree before costs are ascertained, leave of Court is required under Section 94 of the Civil Procedure Act.

10. It is worth-noting that the court of appeal in Court of Appeal Case No.118 of 2018 upheld the decision dismissing the Preliminary Objection. No steps were taken by the Plaintiff/Respondent to challenge the said decision.

11. I have read through the grounds of opposition dated 11th December,2019 and find the same ambiguous and do not raise any solid opposition.

12. The Court of Appeal, in its decision awarded the Defendant/Applicant costs to be borne by the 1st Respondent and taxation is the only avenue available unless parties consent.

13. The prayers sought in the application are actually the natural steps to be taken after judgment is rendered. I find that this Application is rightfully before court and proceed to allow it.

14. The upshot therefore is that the Application dated 6th November, 2019 be and is hereby allowed in terms of prayer 1 and 2. Costs to follow the cause. 1

5. The orders granted herein to apply to 2nd and 3rd Interested Parties as their prayers are similar to those of the Defendant/Applicant.

16. Orders Accordingly.

Dated, Signed and Delivered in Nairobi this 14th Day of May,2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the COVID-19 pandemics, and in light of the directions issued by His Lordship, the Chief Justice, on 15th March 2020. This ruling/judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159 (2) (d) of the Constitution which requires the court to eschew technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act, Cap 21, Laws of Kenya, which impose on this court the duty to use, inter alia, suitable technology to enhance the overriding objective, which is to facilitate just, expeditious proportionate and affordable resolution of civil disputes