[2017] KEHC 4474 (KLR)
The court held that the respondent's objection to the taxation of the bill of costs was unfounded. The petitioner was entitled to engage an advocate at any stage of the proceedings, and the respondent could not challenge the costs awarded by the court without appealing the award. Furthermore, the court found that...
Source-derived case information.
- Citation
- [2017] KEHC 4474 (KLR)
- Parties
- Applicant: Bernard Othieno Oduor; Respondent: Bonventure Ochieng Ogola
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 50 of 2009
- Procedural Posture
- Probate and Administration / Ruling on Objection to Taxation of Bill of Costs
- Outcome
- objection dismissed with costs to the applicant
- Judges
- KW Kiarie
- Legal Topics
- Probate Costs, Bill of Costs, Advocate Engagement, Applicability of Civil Procedure Rules, Law of Succession Act, Taxation Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Othieno Oduor
Applicant
Bonventure Ochieng Ogola
Respondent
Procedural Posture
Probate and Administration / Ruling on Objection to Taxation of Bill of Costs
Legal Issues
- 1 Whether the petitioner could engage an advocate after the grant was issued and recover costs from the estate.
- 2 Whether the bill of costs was properly before the court given the alleged misapplication of the Civil Procedure Rules.
- 3 Whether Order 51 of the Civil Procedure Rules applies to probate and administration matters.
Ratio Decidendi
The court held that the respondent's objection to the taxation of the bill of costs was unfounded. The petitioner was entitled to engage an advocate at any stage of the proceedings, and the respondent could not challenge the costs awarded by the court without appealing the award. Furthermore, the court found that the Civil Procedure Rules, specifically Order 51, do not apply to probate and administration matters unless expressly imported by the Law of Succession Act. Since the relevant provisions were not imported, the objection based on the Civil Procedure Rules was without merit. The objection was therefore dismissed with costs to the applicant.
Court Disposition
objection dismissed with costs to the applicant
Orders
- The objection to the bill of costs is dismissed.
- The respondent shall bear the costs of this objection.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 50 OF 2009
IN THE ESTATE OF ANDREW OBEDIA ........................... DECEASED
BETWEEN
BERNARD OTHIENO ODUOR ........................ PETITIONER/APPLICANT
AND
BONVENTURE OCHIENG OGOLA ................................. RESPONDENT
RULING
BONVENTURE OCHIENG OGOLA , the respondent herein filed an objection to taxation, dated 30th June 2015. His objection was premised on the following grounds:
1. That the petitioner filed an application for grant in person and after the grant was issued to him, he had no capacity to engage an advocate in this matter and he should therefore bear the advocate's fee himself.
2. The advocate who prepared the bill of costs is wrongly on record and that the bill is wrongly before the court.
3. That the bill of costs is prematurely before court contrary to Order 51 Rule 11(2) of the Civil Procedure Rules.
The objection has been challenged.
In his first ground , the respondent contended that the petitioner was not entitled to hire the services of an advocate after the grant was issued. This is misconceived. Any party is entitled to retain the services of an advocate at any stage of proceedings. He cannot be heard to challenge the costs awarded in this court. If he was aggrieved by the award, he ought to have appealed. This ground lacks merit.
In the case of PRISCILLA VUGUTSA KAMALIKI V MARY RUNYANYI OCHIENG [2016] eKLRHon. Judge Nekoye Sitati observed as follows:
The first issue for this Court to determine is whether the instant application is properly before the Court. The application is expressed to be brought under Section 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act Order 40 Rule 4 and Order 51 Rule 1 of the Civil Procedure Rules. It is worth noting that the Law of Succession Act is a self-contained Act and provisions of the Civil Procedure Act, unless specifically imported into it are not applicable. A look at Rule 63 of the
Law of Succession Act reveals that the provisions under which the present application is brought are not some of the provisions imported into the Law of Succession Act. What this means therefore is that the instant application is incompetent for want of form and is therefore fit for striking out.
Order 51 of the Civil Procedure Rules is inapplicable in Probate and Administration cases. The objection to the bill of costs therefore lacks ground to stand on. The same is dismissed with costs.
DELIVEREDandSIGNEDatBUSIAthis17thdayof July, 2017
KIARIE WAWERU KIARIE
JUDGE