[2018] KEHC 2704 (KLR)
The court declined to rule on the application to set aside the certificate of taxation and for stay of execution because an earlier order referring the matter to the Deputy Registrar remained in force. The judge held that it would be inappropriate for the High Court to address the application while the order...
Source-derived case information.
- Citation
- [2018] KEHC 2704 (KLR)
- Parties
- Applicant: Ameli Inyangu & Partners Advocates; Respondent: Kenya Urban Roads Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1032 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Certificate of Taxation and for Stay of Execution
- Outcome
- Application not determined; matter referred to Deputy Registrar for directions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Taxation of Costs, Setting Aside Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ameli Inyangu & Partners Advocates
Applicant
Kenya Urban Roads Authority
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Certificate of Taxation and for Stay of Execution
Legal Issues
- 1 Whether the High Court should address the application to set aside the certificate of taxation and stay execution while an order exists referring the matter to the Deputy Registrar.
- 2 Whether the Deputy Registrar is the proper forum to hear the application under the Civil Procedure Rules.
Ratio Decidendi
The court declined to rule on the application to set aside the certificate of taxation and for stay of execution because an earlier order referring the matter to the Deputy Registrar remained in force. The judge held that it would be inappropriate for the High Court to address the application while the order subsists, and directed that the file be placed before the Deputy Registrar for directions to comply with the existing order. The court emphasized the need to follow proper procedural channels as set out in the Civil Procedure Rules and the previous court order.
Court Disposition
Application not determined; matter referred to Deputy Registrar for directions.
Orders
- The file shall be placed before the Deputy Registrar on 30th October, 2018 for directions in compliance with the order of 8th December, 2016.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC APPLICATION 1032 OF 2013
AMELI INYANGU & PARTNERS ADVOCATES.......APPLICANTS
VERSUS
KENYA URBAN ROADS AUTHORITY......................RESPONDENT
RULING
The dispute herein involves a bill of costs that was filed by the advocates against the client. After the filing of the bill of costs, a taxation notice was issued and served upon the Attorney General on behalf of the client. However, when the matter was called out on 13th April, 2016 before the Deputy Registrar, only the applicant appeared while the respondent was absent. The Attorney General had filed a replying affidavit to the said bill of costs. In the absence of the respondent, the applicant prayed that the bill be taxed as drawn and a ruling date be set.
In the ruling delivered on 29th August, 2016 the bill was taxed at Kshs. 49,791,127/=. Thereafter, the respondent filed an application dated 7th December, 2016 by way of Notice of Motion under Article 159 of the Constitution, Order 22 Rule 22 (1) of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act to have the certificate of taxation dated 6th September, 2016 set aside and the bill be taxed afresh.
There was also an order sought that the costs allowed by the Deputy Registrar on the ex parte taxation dated 7th October, 2013 be set aside and there be a stay of execution of all consequential orders there under.
When the said application was placed before the court under Certificate of Urgency on 8th December, 2016 the court ordered that the application shall be heard by the Deputy Registrar going by the provisions of Order 49 of the Civil Procedure Rules. Indeed, on the same day, that is 8th December, 2016 the Deputy Registrar gave a hearing date for 15th December, 2016. For reasons not clear on the record, nothing transpired on the date set for hearing but on 14th February, 2016 the matter was placed before Riech J, who made several orders resting with the order to file and serve submissions made on 19th April, 2017. Eventually this matter was placed before me on 2nd July, 2018 when Riech J had been transferred from this station whereupon I observed that both counsel had filed submissions and a ruling reserved for 25th October, 2018.
I have given this background because as of now, the order that I made on 8th December, 2016 for the hearing of the application by the Deputy Registrar has not been set aside. I consider it inappropriate to write a ruling in the subsistence of that order and therefore have elected to draw the attention of counsel thereto. Unless it is submitted and decided upon, that the Deputy Registrar should not hear this matter, the High Court should not address the issues raised in the application in view of the cited provisions and the order of 8th December 2016.
I believe that both parties would want this matter to be settled as early as possible and therefore to ensure that this is done, I direct that the file be placed before the Deputy Registrar on 30th October, 2018 for directions so as to comply with the order made on 8th December, 2016.
Costs shall be in the cause.
Dated, signed and delivered at Nairobi this 25th day of October, 2018
A. MBOGHOLI MSAGHA
JUDGE