[2021] KEHC 8873 (KLR)
The court found that the notice of taxation was properly served on the appellant's advocate as evidenced by the undisputed affidavit of service. The certificate of taxation dated 28th April, 2017 was not challenged by way of reference or otherwise. In the absence of any dispute or reference against the certificate...
Source-derived case information.
- Citation
- [2021] KEHC 8873 (KLR)
- Parties
- Appellant: Dodoma Transport Agency Ltd; Respondent: Musau Muthoka (suing as the administrator of the estate of the late Mutisya Musau)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 166 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Judgment on Taxed Costs and Execution
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Taxation of Costs, Execution of Decree, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dodoma Transport Agency Ltd
Appellant
Musau Muthoka (suing as the administrator of the estate of the late Mutisya Musau)
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Judgment on Taxed Costs and Execution
Legal Issues
- 1 Whether the bill of costs was properly taxed and served on the appellant.
- 2 Whether the respondent/applicant is entitled to judgment based on the taxed costs and execution of the decree.
Ratio Decidendi
The court found that the notice of taxation was properly served on the appellant's advocate as evidenced by the undisputed affidavit of service. The certificate of taxation dated 28th April, 2017 was not challenged by way of reference or otherwise. In the absence of any dispute or reference against the certificate of taxation, the respondent/applicant is entitled to judgment based on the taxed costs and to execute the decree. The application was therefore allowed as drawn with costs to the respondent/applicant.
Court Disposition
application allowed
Orders
- The application dated 12th February, 2020 is allowed as drawn.
- The respondent/applicant is authorised to execute the decree based on the taxed costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIOBI
CIVIL APPEAL NO. 166 OF 2009
DODOMA TRANSPORT AGENCY LTD ......APPELLANT/RESPONDENT
VERSUS
MUSAU MUTHOKA(Suing as the administrators of the estate of the late)
MUTISYA MUSAU (DECEASED).....................RESPONDENT/APPLICANT
RULING
This is a Notice of Motion dated 12th February, 2020 seeking judgment based on taxed costs and that the respondent/applicant be authorised to execute the decree. The application is supported by grounds set out on the face of the application and a supporting affidavit sworn by the respondent/applicant. The application is opposed and there is a replying affidavit sworn by the advocate for the appellant.
The only contest in this matter is whether or not the bill of costs was taxed on the appointed dates. The advocate for the appellant states that from her records, they were never served with any hearing notice to the taxation of bill of costs.
I have perused the court file. There is a return of service filed on 10th March, 2016 showing that the notice of taxation was served upon the appellant’s advocate. That affidavit of service has not been disputed. More importantly however, there is a certificate of taxation dated 28th April, 2017 which has not elicited any dispute from the appellant. I say so because, any party aggrieved by the order on the taxation of a bill of costs is at liberty to file a reference to the High Court. As it is, that certificate of taxation has not been disputed.
Going by the record therefore, the application dated 12th February, 2020 is allowed as drawn with costs to the respondent/applicant.
Dated and delivered at Nairobi this 25th day of February, 2021.
A.MBOGHOLI MSAGHA
JUDGE